We created an animated GIF showing the growth of the unconvicted population in jails compared to those convicted
by Meredith Booker,
May 26, 2016
When talking about jails and jail growth, it’s really important to emphasize that what’s driving jail growth is the portion of those in jail that are unconvicted.
Peter made a graph for his article Jails matter. But who is listening?, and an animated version for the Detaining the Poor:
How money bail perpetuates an endless cycle of poverty and jail time report. But that image wasn’t something that could be shared on Twitter. Until now:
Detailed data sourcing can be found in our Mass Incarceration: The Whole Pie 2016 report.
Seven deadly sins: the problem with Bill Clinton's criminal justice legacy isn't one bill, or two or even three, but at least seven bills.
by Peter Wagner,
May 25, 2016
While many current and recent presidential candidates have called for ending mass incarceration and have been critical of the “Clinton crime bill,” their proposals have been short on specifics. Even more troubling however, is their narrow view — and that of many journalists — of Bill Clinton’s criminal justice legacy. The problem isn’t one bill, or two or even three but at least seven bills. (And we probably missed some. Please leave a discussion of bills we missed in the comments section below.)
Of course, some of the bills were so bad they have already been partially repealed by Congress, and most states have already formally rejected the offensive idea of using criminal records to deny hungry people food. And, of course, some of the provisions of some of the bills have since expired.
But here is our list of where a review of the criminal justice legacy of the Clinton era should begin:
- 1994: Violent Crime Control and Law Enforcement Act put 100,000 more police on the streets and created federal economic incentives for states to make their own laws more punitive. This law also made low-income incarcerated people ineligible for Pell Grants to pay for higher education courses.
- 1996: The Prison Litigation Reform Act made it harder for incarcerated people to use the federal courts to protect their civil rights, and made it easier for prisons and jails to escape oversight of their operations.
- 1996: The Antiterrorism and Effective Death Penalty Act made it harder for wrongly convicted people to prove their innocence. (Liliana Segura at The Intercept has an excellent article about the political machinations behind the effort to gut the ancient right of habeas corpus.)
- 1996: Megan’s Law required states to share law enforcement’s databases of people who have committed sex offenses with the public. While no doubt well-intended, there is no evidence — despite years of scholarly effort — to indicate that these laws reduce sex offender recidivism. In fact, they seem increasingly likely to be exacerbating it while wasting resources and time that could be spent on other, more effective law enforcement activities.
- 1996: The Personal Responsibility and Work Opportunity Reconciliation Act, aka the bill to “end welfare as we know it,” also included provisions that banned, for life, people with drug felony convictions from ever receiving food stamps.
- 1997: The Adoption and Safe Families Act required states to move more quickly to terminate parental rights and place children who are in foster homes up for adoption. One side effect of this law is it made it more likely that any incarcerated parent with a sentence of at least 15 months — even if their crime did not involve their children — could lose their children forever.
- 1998: The Higher Education Amendments of 1998 delayed or denied federal financial aid for college to anyone with a misdemeanor or felony drug conviction.
While Megan’s Law continues to be expanded, some of these laws have expired or are in one way or another rolling back. For example:
- The federal grants in the Violent Crime Control and Law Enforcement Act of 1994 that supported prison construction and the hiring of more police have long since expired. And there is now a pilot program to once again give incarcerated people access to Pell grants.
- 44 states, most recently Texas in September 2015 and Alabama in February 2016 have partially or fully opted out of the requirement to deny hungry people with past drug convictions access to food stamps.
- Some states like Washington and New York have implemented the Adoption and Safe Families Act in a way that protects the parental rights of families temporarily separated by incarceration.
- In 2006, the Higher Education Act was amended to limit the prohibition of people with drug convictions from receiving federal aid to only those who were convicted while they were receiving federal aid.
Ending mass incarceration will require far more than repealing one – or seven – of Bill Clinton’s crime bills. But one test of whether an elected official is serious about ending mass incarceration is whether he or she recognizes the complexity of how mass incarceration came to be and can put forth sufficiently complex remedies to undo that harm.
While the goal of the Adoption and Safe Families Act is noble, the law has the unintended consequence of depriving incarcerated parents of their legal rights to their children.
by Alison Walsh,
May 24, 2016
Five million children experience the incarceration of a parent at some point in their lives. As a result, many of these children will live with relatives such as grandparents or be placed in foster care. Some of these families will never be legally reunited.
With the passage of the federal Adoption and Safe Families Act (ASFA) in 1997, states were required to automatically file a petition to terminate parental rights once a child has been in foster care for 15 of the most recent 22 months. The goal of ASFA is to prevent children from staying in foster care indefinitely by making them eligible for adoption after a set period of time has passed.
But these noble intentions conflict with the realities of mass incarceration, and the law stacks the odds against incarcerated parents seeking to maintain their legal rights to their children.
In New York, for example, the median minimum sentence for women is 36 months — more than twice as long as the ASFA deadline. In 2008, almost 73% of women incarcerated in New York reported having one or more children. ASFA sets these mothers up to lose their children as soon as their sentences exceed 15 months. Loss of parental rights is almost always permanent and strips the parent of any right to know whether her child has been adopted, let alone to see her child.
ASFA does have three built-in exceptions. Parents can be exempted from the 15 out of 22 months timeline when:
- The child is under a relative’s care
- A state agency finds a “compelling reason” that terminating parental rights is not in the child’s best interest
- The state has failed to make “reasonable efforts” to reunite the child with his or her parents
Women in state prison most commonly have their mothers care for their children while they are locked up, and because incarceration disproportionately impacts certain families and communities, some grandmothers must care for multiple grandchildren. This can be financially burdensome and make staying in touch even more difficult. A majority of people are incarcerated over 100 miles from their families and even a single phone call can be prohibitively expensive.
When regular communication is such a challenge, the “compelling reason” exception is of little practical value for any family impacted by ASFA. Caseworkers are more likely to exercise the “compelling reason” exception if they have direct knowledge of the parent/child relationship or have observed the two interacting. This often leaves parents dependent upon caseworkers to arrange and be present for prison visits.
Despite the obvious challenges of navigating visits and court proceedings from behind bars, close to half of the states use time-driven standards — not case-by-case considerations — to automatically file for termination of an incarcerated person’s parental rights.
Fortunately, movements for reform led by activists — including currently and formerly incarcerated parents — have succeeded in liberalizing the ASFA guidelines in New York and Washington. These states allow for increased flexibility in cases of parental incarceration; parents can be judged individually by the roles they play in their children’s lives, rather than the lengths of their sentences.
New York passed the ASFA Expanded Discretion Bill in 2010. This act gives foster care agencies the authority to postpone filing for termination of parental rights when the petition is based solely on a parent’s incarceration or participation in a residential drug treatment program. Washington followed suit in 2013 with the Children of Incarcerated Parents Bill, which awards similar discretion to courts in cases involving parental incarceration. In addition, the New York and Washington laws require the states to inform parents of their rights and responsibilities and take into account the challenges of meeting those responsibilities from behind prison walls.
These efforts to ease ASFA’s strict guidelines do not prohibit states from terminating parental rights when a judge determines it is in a child’s best interest to do so. But by giving incarcerated parents a chance to advocate for reunion with their children, these states acknowledge that incarceration alone does not automatically make someone an unfit parent for life. New York and Washington recognize that arbitrarily severing parent-child relationships can do more harm than good.
For more information on ASFA and various state reforms, see:
- Philip M. Genty, Moving Beyond Generalizations and Stereotypes to Develop Individualized Approaches for Working with Families Affected by Parental Incarceration. Family Court Review, Vol. 50 No. 1, January 2012 36-47
- Washington State’s 2013 Children of Incarcerated Parents Bill
We didn't get mass incarceration from War on Drugs alone, but drugs play an important role in less discussed stages of criminal justice systems
by Bernadette Rabuy,
May 23, 2016
In large part due to the wide success of Michelle Alexander’s game changing book, The New Jim Crow, the War on Drugs is often seen as the cause of mass incarceration. But as support for criminal justice reform has grown, discussions of mass incarceration have gotten more sophisticated. The sheer scale of our system of mass incarceration has caused more authors, organizations, presidential candidates, policymakers, and reporters to ask hard questions about how we got here and how we can turn the tide on mass incarceration.
The truth is our country didn’t get mass incarceration from the War on Drugs alone, but too often, when those interested in criminal justice reform are reminded of this, the argument goes to extremes and ends up understating the role of drugs in mass incarceration. Here are just some reasons that drug policy reforms matter:
As we showed in our pie chart report, some states like New York have made huge dents in their prison population in part by focusing on drug policy reforms. New York cut its prison population by 26% from 1999-2012 in part by shifting police resources away from felony drug arrests and increasing the proportion of people with felony drug arrests who receive treatment rather than prison. So while states like New York must now look beyond drug policy reform, other states like Oklahoma or Alabama can make immediate progress by reducing admissions or length of stay for drug offenses.
For example, according to the Urban Institute, if Oklahoma halved drug admissions, it would see a 9% drop in its prison population by December 2021. The same reform would only reduce New York’s prison population by 1% in the same timeframe.
While less than 16% of people in state prisons are incarcerated for a drug offense, drugs are a larger slice of the local jail and federal prison slices of the imprisonment pie and play a greater role in other less discussed stages of criminal justice systems:
|Stage of criminal justice system
||Proportion that is drugs
|State Felony Prosecutions, 2009
|State Felony Convictions, 2009
|Local Jail Incarceration, 2002
Listed in order of highest proportion to lowest proportion. Sources: State felony prosecutions (Table 1, Felony Defendants in Large Urban Counties), Parole (Table 6, Probation and Parole in the United States, 2014), State felony convictions (Table 22, Felony Defendants in Large Urban Counties), Probation (Table 4, Probation and Parole in the United States, 2014), and Local jail incarceration (Profile of Jail Inmates, 2002 or see Mass Incarceration: The Whole Pie for more details)
The decision to prosecute drug offenses not only means that we are sending people to relatively short stints of prison time instead of providing longer-term solutions to addiction like drug treatment, but also that we are giving people life-long criminal records that can prevent future employment, exclude them from public housing, and lead to harsher punishments for future crimes. Drug charges — and their frequent mandatory minimum sentencing — also give prosecutors leverage to compel guilty pleas on other offenses that possibly wouldn’t have resulted in a conviction otherwise.
A recent White House report suggests that the War on Drugs led law enforcement to focus more on drug enforcement than property and violent crimes, even when property and violent crime rates were rising from the mid 80s to the early 90s. Drug arrests peaked at 1.6 million arrests in 2006, despite the fact that drug use among Americans of all age groups had been dropping or unchanged for years.(*) Even though drug arrests are declining, our pie chart report found that there are still over 1 million drug arrests each year, most of which are for possession, not sales. Further, the greatest proportion of drug arrests nationwide is for possession of the drug the public overwhelmingly sees as the least dangerous: marijuana (39.7% of all drug arrests).
Drug offenses are a driver of deportation of immigrants. Between 2007 and 2012, drug convictions constituted one out of every four removals of non-citizens with a criminal conviction.
There are collateral consequences — specific to drug offenses — that make it extremely difficult for people convicted of drug offenses to succeed in the future. For example, some states automatically suspend a person’s driver’s license if he is convicted of a drug offense, regardless of whether a vehicle was involved. A handful of states still deny food stamps to people with drug convictions, and students can lose federal student aid if they are convicted of a drug offense.
Just like there are collateral consequences that are specific to drug offenses, there were overly harsh policies enacted as part of the War on Drugs that continue to do harm. One example is in California where there is a three-year sentence enhancement for prior drug convictions, a law that led at least one woman arrested for a $5 sale of cocaine to spend six years locked up. (Fortunately, there is a bill right now, SB 966, that might finally end this ineffective law.)
The six factors above concentrate on harmful effects of the War on Drugs that are easy to measure. Other effects defy easy measurement but may be as important if not more so. For example, without the War on Drugs, would police have been as likely to search people of color during traffic and street stops? And how does it change a community’s long-term relationship with the police when so much of their interaction with the police is being on the receiving end of searches? In my view, a large reason why Michelle Alexander’s drug-war-heavy explanation of the rise of mass incarceration resonated with so many readers is because it matched their personal, lived experience.
To be sure, ending mass incarceration will require rolling back the punitive laws that affect people convicted of violent offenses. But I don’t think our work is done when it comes to drug policy reform. At a time when more people such as President Obama are willing to publicly accept the view that addiction is a public health issue rather than a criminal one, there is still room for drug reforms in the movement for criminal justice reform.
(*) For drug use from 2002 to 2014 broken down by age group (12 or older, 12 to 17, 18 to 25, and 26 or older), see Figure 2 from Behavioral Health Trends in the United States: Results from the 2014 National Survey on Drug Use and Health. For drug use from 1991 to 2014 for youth in grades 8, 10, and 12 see Table 2 (page 56) from 2014 Overview: Key Findings on Adolescent Drug Use.
The Bureau of Justice Statistics released a report exploring the fastest growing portion of the prison population, those 55 or older.
by Meredith Booker,
May 19, 2016
The prison population is getting older. A Bureau of Justice Statistics (BJS) report released this morning, Aging of the State Prison Population, 1993-2013, explores the changing age dynamics in state prisons over a 20-year period. While we have previously explored the prison boom among the elderly in New York state prisons, this report offers a national perspective on what is driving prison growth among older adults.
Trends in imprisonment for those over 45 are the exact opposite of what is happening in the national prison population, which has been slightly decreasing in recent years. According to the Bureau of Justice Statistics, people 55+ are now the fastest growing age group in the U.S. prison population.
While the total rate of imprisonment has been going down since 2003, the rate for those 45 or older has been increasing steadily.
Changes in prison population can come from changes in admission rates and changes in sentence lengths. The Bureau of Justice Statistics attributes the massive growth in the aging prison population to both.
Also notable is the rate of new court commitments per 1,000 arrests increasing for violent and property offenses for all age groups from 1993 to 2013. The rate for property offenses nearly quadrupled for those 55 or older (see page 19 of the report).
The Bureau of Justice Statistics reports that those over 55 are also given longer sentences and are expected to serve more of their sentence compared to their younger counterparts. In 2013, adults over 55 were expected to serve almost 50 more months in prison compared to those 18–39. The report does not delve into the causes for this change beyond a reminder that state policy controls sentencing decisions.
Some of this isn’t new, but what is new and useful is the report’s effort to disaggregate national prison population data by age (although it is not available at the state level), despite some Bureau of Justice Statistics data series collections not requiring facilities to report the ages of those they have in prison.
While the portion of the prison population over 55 years old was only 10% in 2013 (up from 3% in 1993), this number is likely to continue to grow, requiring states to reevaluate how they manage the graying prison population.
Some states are beginning to recognize the differing needs of an aging prison population by providing special programming, housing, and medical care to those considered “elderly” by the facility. Other options are compassionate or early release programs, and utilizing common sense when making parole decisions.
The growth of the graying prison population shows no signs of slowing down. The Council of State Governments warns, “as America’s prisoners continue to grow older and sicker, the costs to states will continue to rise.” States are going to have to take action now to make sure those aging are properly cared for or better yet, released back into the community.
The full Bureau of Justice Statistics report is available at: http://www.bjs.gov/index.cfm?ty=pbdetail&iid=5602
As jails around the county experiment with postcard-only policies, our new report examines jail mail standards in each state.
by Alison Walsh,
May 19, 2016
As new technologies such as video visitation and electronic messaging are too often introduced as expensive and low-quality substitutes for face-to-face contact in prisons and jails, letter writing would appear to be the most cost-effective and reliable communication option for incarcerated people and their loved ones.
And letters can help incarcerated men and women stay in touch not just with family members, but also with medical caregivers, social service workers, educators, and employers, making reentry less challenging and recidivism less likely. But jails in several states are experimenting with taking away letters and requiring people to communicate via postcards. A new report released today explores the role of state agencies in regulating counterproductive policies like the banning of letters.
The approximately 3,300 jails in the United States operate under a complex system of leadership. When individual jails adopt harmful policies such as letter bans, it becomes important to know which agency is in charge of setting and enforcing best practices in county jails on a statewide level. Corey Frost of Prison Policy Initiative’s Alternative Spring Break program set out to identify the entities that regulate jail standards in every state. He also determined whether each entity’s authority is binding and what restrictions (if any) these entities place on written communication. His new report, Protecting Written Family Communications in Jails: A 50-State Survey, finds that states that acknowledge the importance of written communication are less likely to contain jails that have adopted postcard-only policies.
Frost notes that although jails in 13 states have implemented letter bans, most state agencies prohibit restrictions on the volume or length of letters an incarcerated person can receive or send. In most states, including some of the states where sheriffs have banned letters, “restricting the written communication of incarcerated people to postcards contradicts the spirit, if not the letter, of the guidelines.” His report recommends that governing bodies, from groups with statewide oversight to local sheriffs and jail administrators, set guidelines that recognize the value of written communication, ensure that incarcerated people are allowed to receive and send letters of unlimited length and volume, and permit restrictions to mail service only when warranted by legitimate safety concerns.
Protecting Written Family Communications in Jails: A 50-State Survey, is a follow-up to Prison Policy Initiative’s 2013 report, Return to Sender: Postcard-only Mail Policies in Jails, which described the value of letter correspondence for incarcerated people and detailed the harmful consequences of postcard-only restrictions.
With a little over 6 months left in his term, President Obama is on track to become the President who has granted the smallest portion of clemency requests in history.
by Meredith Booker,
May 17, 2016
Earlier this month, President Obama granted clemency to an additional 58 incarcerated people, bringing the total number of clemency petitions he has granted to 376. While the White House boasts that the President has commuted more sentences than all of the last six presidents combined, any celebration of President Obama’s record on clemency is extremely premature. As a percentage of petitions received (a measurement that I argue better represents a President’s clemency effort) President Obama’s clemencies are the stingiest in the 116 years of available data.
By my measure, the President could grant clemency to 2,000 people tomorrow and still have granted a smaller percentage than President Reagan.
To be fair, President Obama’s percentage is so low because a record number of clemency petitions have been received; but President Obama solicited those petitions through a new clemency initiative in 2014 and made their review a central part of his criminal justice reform agenda. The actual performance, however, is a serious disappointment.
The Department of Justice has tracked the number of clemency petitions received and their outcomes since 1900. Using this data which includes the 58 clemency requests granted on May 5, 2016 by President Obama, I calculated the percent of clemency petitions that were granted (including pardons, commutations, and remissions) by each president since Theodore Roosevelt.
A different process was used the last time over 20,000 clemency petitions were received by the White House. President Ford convened a clemency board to review those charged with dodging the military draft during the Vietnam War. Ford’s Clemency Board was set up under an executive order (separate from the DOJ’s data graphed above), and its very operation was removed from the problematic pardon process that has complicated Obama’s effort.
In a great article on Fusion, Casey Tolan reports that over the course of a single year, President Ford’s board “reviewed 21,500 petitions and recommended that the president grant clemency to 14,514 of them.” That is an approval rate of 67.5%, even higher than Ford’s 26.6% of clemency requests granted through the DOJ process. No other president has convened such a board to review clemency petitions, despite it being suggested to the White House by law professor Mark Osler, and civil rights activist Nkechi Taifa in 2012 and 2013.
Part of why President Obama’s clemency initiative isn’t working is that it does the opposite of President Ford’s clemency board. Instead of making it easier to release those who have been punished by harsh War on Drugs policies, Obama created more layers of administrative oversight.
The process is failing so badly that the Pardon Attorney quit in January. Her resignation letter, obtained by USA Today was scathing, arguing that the DOJ & Deputy Attorney General:
- Failed to provide the resources it promised, including additional attorneys and staff
- Instructed her to “set aside” thousands of clemency petitions
- Overruled some of her recommendations for clemency, and
- Denied her access to White House counsel, disintegrating the integrity of the clemency decision-making process
With a little over 6 months left in his term, there is still time for President Obama to take broad and sweeping action on clemency. He needs to pick up the pace and change the structure to ensure that the next President doesn’t inherit “a sluggish and often intransigent review process” with unnecessary layers of bureaucracy.
Otherwise, the President’s grand intentions on clemency will leave him as the President who granted one of the smallest portions of requests for clemency in history. That’s not the legacy President Obama had in mind when he said that he would “make sure that more of our citizens – even those who have made mistakes — have a chance to become productive members of society and contribute to this country that we love.”
The graphic was updated October 5, 2018 to reflect President Obama’s final clemency record. His clemency program did “pick up the pace” at the very end of his presidency, ultimately granting 1,715 commutations and 212 pardons out of a total of 36,544 petitions received. The 1,927 total petitions Obama granted was the second-highest number granted through the DOJ process by any president since 1900, but this number still falls far short of his goal of 10,000.
The number of stop and frisks has gone down in recent years, but the practice is still not working.
by Yoo Eun Kim,
May 16, 2016
In 2013, a New York federal judge ruled that stop and frisk searches violate the constitutional rights of minorities and tasked Peter Zimroth, a former chief assistant district attorney, with introducing new policies to reform the NYC Police Department. Even though stop and frisk tactics are no longer sanctioned by the NYC Police Department, NYC officers have still been accused of employing stop-and-frisk tactics to conduct police stops and street interrogations.
Over the years, stop and frisk tactics have targeted a disproportionate number of young Blacks and Latinos. According to New York Civil Liberties Union (NYCLU) data, in each year from 2002-2012, over 80% of those apprehended were Black and Latino. In the same time period, over 80% of the New Yorkers searched by police were found innocent.
The NYCLU data also shows that from 2011 to 2015, the number of police stops and street interrogations declined by 97%. But the proportion of innocent individuals or minority groups subject to stop and frisk has remained virtually unchanged. From 2013-2015, the percentage of those who were stopped by police and found innocent remained at around 80%.
Even as the number of stop and frisks in New York has decreased significantly, the percentage of stops that resulted in further action has remained steady.
In other words, while stop and frisk is far less common today, it’s still not working when it is used. Baseless police stops and street interrogations continue to affect too many innocent minorities. The time has come to close the door on this controversial, unlawful police tactic that does little beyond undermining the liberty of minorities through fear and intimidation.
Yoo Eun Kim was a work-study Research Associate at Prison Policy Initiative from Spring 2014 to Spring 2016.
New report finds people unable to meet bail are poorest of the poor.
May 10, 2016
FOR IMMEDIATE RELEASE: May 10, 2016
brabuy [at] prisonpolicy.org
Easthampton, MA — People in local jails are significantly poorer than non-incarcerated people, and even poorer than people in prison, finds a new report by the nonprofit Prison Policy Initiative.
Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time connects the large pretrial population in local jails to the criminal justice system’s reliance on money bail. “I kept hearing that 80% of defendants are indigent, but I was curious if people in local jails are even poorer than people in prison. To get a better picture of the role that money bail plays in the large unconvicted jail population in the U.S., we focused specifically on people unable to meet bail. I expected people unable to meet bail to be poor, but I was surprised that a majority fall within the poorest third of the national income distribution,” said Bernadette Rabuy, who, along with data scientist Dan Kopf, last year published a similar report on the pre-incarceration incomes of people in state prison.
The latest numbers from the Bureau of Justice Statistics (BJS) reveal that median bail for felony defendants was $10,000. “Using another BJS dataset, the Survey of Inmates in Local Jails, we found that the typical detained defendant would need to spend eight months’ income to cover $10,000 in money bail,” explained Kopf.
Detaining the Poor’s release coincides with newly published research by the Federal Reserve showing that many Americans are unable come up with $400 in an emergency without borrowing money from others or selling something. “If the average American cannot easily come up with $400, it is clear that a system that requires $10,000 from the poorest members of our society for pretrial release is a system set up to fail,” explained Rabuy.
The report provides the pre-incarceration incomes of people in local jails who had the opportunity to be released pretrial, but were unable to meet the conditions of bail. The report further breaks down the incomes of the detained population by race, ethnicity, and gender. Additionally, the authors compare pre-incarceration incomes to the incomes of similarly aged non-incarcerated Americans.
While the report focuses on the incomes of people who were detained for their inability to meet bail, the authors recognize the scarcity of useful information about the jail populations in this country, so they also provide the pre-incarceration incomes of people in local jails generally in an appendix.
The new report, Detaining the Poor: How money bail perpetuates an endless cycle of poverty and jail time is available at: http://www.prisonpolicy.org/reports/incomejails.html
The report is a collaboration between the Prison Policy Initiative and Dan Kopf, a member of the organization’s Young Professionals Network and co-author of last year’s report on the pre-incarceration incomes of people in state prisons.
Professor Margo Schlanger's data shows how the Prison Litigation Reform Act closed the courthouse door on incarcerated people seeking protection of their civil rights.
by Meredith Booker,
May 5, 2016
The Prison Litigation Reform Act, which made it much harder for incarcerated people to file and win civil rights lawsuits in federal court, was a key part of the Clinton-era prison boom. It turned 20 years old last week.
Law Professor Margo Schlanger has an important article using 40 years of court and imprisonment data to explore the impact of the Prison Litigation Reform Act on incarcerated people’s access to the courts:
The filing rate by incarcerated people dropped significantly after the passage of the Prison Litigation Reform Act. And ironically, despite Congress’ fears of a prison lawsuits flooding the courts, this data that controls for the size of the prison population shows that in 1996, when the Prison Litigation Reform Act was passed, fewer lawsuits per 1,000 incarcerated people were being filed than during the ten year period of 1979-1988.
After the passage of the law, court filings by incarcerated people plummeted. This drop is largely attributed to several key provisions in the Prison Litigation Reform Act:
- Incarcerated people must exhaust all internal administrative grievance processes available to them within the correctional facility before taking their case to court. Working through these administrative processes can be complicated, have difficult deadlines, and often be fruitless.
- Suits alleging only mental or emotional harm are restricted. (Suits about physical injury are still allowed.)
- Courts are no longer allowed to waive court fees for incarcerated people, instead requiring installment payments. Additionally, an incarcerated plaintiff who has had three previous lawsuits dismissed can be required to pay in advance.
- When a lawsuit succeeds, the statute sharply limits the amount of litigation costs that the court can order the facility to pay the incarcerated person’s attorney. This reduces the number of lawyers willing to take good winnable cases on behalf of incarcerated people. In 2012, just over 5% of incarcerated people’s civil rights cases were represented by attorneys. (By contrast, 65% of non-incarcerated civil rights plaintiffs and 97% of labor and employment cases plaintiffs were represented by attorneys.)
- Places limits on the ability of the courts to change prison or jail policy.
These provisions shut incarcerated people out of the courts, to lasting effect. As Schlanger explains:
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.
And her data illustrates that effect:
As existing orders expired, the portion of the incarcerated population that was covered by court ordered protection dropped sharply a few years after the Prison Litigation Reform Act. By the end of 2006, only 7 states had system-wide court order coverage in their jails or prisons.
The drafters of the Prison Litigation Reform Act argued that the goal was to limit frivolous lawsuits, which they claimed where rapidly increasing. While the number of prison lawsuits was rising in the 1990s, so too was the prison population. In fact, as Schlanger’s data in the first graph above reveals, court filings were – controlled for the size of the prison and jail population – actually lower than in the previous decade.
Now, at a time when the public and many elected officials are questioning the wisdom of mass incarceration, it’s time to reconsider the Prison Litigation Reform Act and the very idea of closing the courthouse doors to cries for justice.
Additional work about the Prison Litigation Reform Act by Margo Schlanger includes Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders and Inmate Litigation.