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.1 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The PLRA should be repealed.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.
The PLRA hinders court access for incarcerated people who are trying to file civil cases — which tend to be mostly civil rights cases. It does this by making these cases harder to bring, harder to win, and harder to settle.
And when incarcerated people manage to overcome those high barriers and win a lawsuit, the PLRA limits the ability of the courts to enforce policy changes through court orders.
For individual incarcerated people, these various barriers add up to a system where it is next to impossible to get any relief from the courts.
In other types of civil cases, judges can issue court orders, which can direct people or parties to take or not take certain actions. Historically, court orders were a major source of regulation and oversight for prisons and jails. However, the PLRA limits the ability of the courts to make these types of adjustments to prison or jail policy by shortening the lifespan of court orders and making it easier for them to be terminated. Under the PLRA, defendants can ask the court to review and possibly terminate orders about prison conditions after just two years, even if the prison or jail has not fully met all (or any) of the terms of the order. In addition, the legislation makes it harder for a court to set a population cap (which might require a jurisdiction to decarcerate) as a remedy for civil rights violations.
It is time for Congress to repeal the Prison Litigation Reform Act. Incarcerated people do not lose all of their rights at the prison or jail door. Yet all too often, their basic freedoms are violated inside these massive and expensive public institutions, which operate largely outside of public view and with little oversight. Correctional facilities are obligated to fulfill their duties to the people under their control, and it is in the public’s interest to ensure that happens.
Yet the PLRA unjustly targets incarcerated people with disadvantageous procedural limits, making it almost impossible for incarcerated people to have their day in court, earn monetary damages for their suffering, and get and enforce prospective relief to prevent violations in the future. Repealing the PLRA is a necessary step towards ensuring that people behind bars have real and meaningful access to justice.
All data was collected by Professor Margo Schlanger. Prison and jail population data were obtained from the Bureau of Justice Statistics. In order to obtain the most comprehensive and continuous data, prison population reflects single day counts, usually on December 31. Jail population is average daily population.
Data on court filings, case characteristics, and case outcomes is from the Federal Judicial Center’s Integrated Database. Schlanger excluded about 8,000 cases filed by one man, Dale Maisano, because their inclusion would distort trend analysis. (These cases are routinely dismissed without further processing under special “abusive litigation” court orders, so they do not impose any burden on defendants.)
Court order coverage is based on data reported by jail and prison officials in the prison and jail censuses conducted by the Bureau of Justice Statistics every five or six years. Since 1983, except in 2012 and 2013, the censuses have included questions about the existence of court orders on a variety of topics. The resulting data are the most comprehensive information available, despite the fact that there are important omissions. Details on omissions are available here.
This table depicts the underlying data for the first graph in this article. It shows the decline in the number of suits filed by incarcerated people following the passage of the PLRA.
This table shows the high percentage of cases brought by incarcerated people that are filed pro se compared to other types of litigation.
This table shows the outcomes of cases brought by incarcerated people over the past 32 years. As the table illustrates, the courts have become less and less hospitable to claims brought by incarcerated people over time. Since the passage of the PLRA, settlements, voluntary dismissals (which are often settlements as well), and trials have all declined.
This table compares outcomes of cases classified as prisoner civil rights/prison conditions to other cases. As the table illustrates, the former are much more likely to have a pretrial decisions for the defendants, and are much less likely to settle or end in a voluntary dismissal. In the rare instances when these cases go to trial, incarcerated plaintiffs are also less likely to win.
Even when incarcerated people do manage to litigate all the way to victory, they tend to be awarded only small damages.
This table contains the Bureau of Justice Statistics data underlying the second graph in this article. The portion of the incarcerated population that was covered by court-ordered protection dropped sharply a few years after the Prison Litigation Reform Act.
The authors thank Katie Rose Quandt for her editorial guidance, German Marquez Alcala for work compiling data, and John Boston for his tireless decades monitoring and sharing how the courts address issues under the PLRA.
Andrea Fenster is a Staff Attorney at the Prison Policy Initiative. She has previously written about how some prison law libraries create barriers to legal access for incarcerated people, as well as about abuses of incarcerated people in solitary confinement. Andrea’s main focus is on the Prison Policy Initiative’s campaign for prison phone justice. Before joining the Prison Policy Initiative, she worked at the Public Defender Service for the District of Columbia, Equal Justice Under Law, and the Prison Law Office.
Margo Schlanger is the Wade H. and Dores M. McCree Collegiate Professor of Law at the University of Michigan Law School where she runs the Civil Rights Litigation Clearinghouse. She is the nation’s leading academic expert on the Prison Litigation Reform Act.
The non-profit, non-partisan Prison Policy Initiative was founded in 2001 to expose the broader harm of mass criminalization and spark advocacy campaigns to create a more just society. The organization’s reports highlight little-known but pervasive effects of mass incarceration, including in its recent reports about barriers to voting from jail and about laws that bar millions of people from juries. Alongside its reports, the organization leads the nation’s fight to keep the prison system from exerting undue influence on the political process (known as prison gerrymandering) and plays a leading role in protecting the families of incarcerated people from the predatory prison and jail telephone industry and the video visitation industry.
As the Supreme Court has explained, “What for a private citizen would be a dispute with his landlord, with his employer, with his tailor, with his neighbor, or with his banker becomes, for the prisoner, a dispute with the State.” ↩
Stating a claim that is not a “strike” under these rules is easier said than done, particularly for people who are filing without legal assistance and who are unlikely to have attained high levels of education. For example, Roy Randall Harper sought damages for his emotional suffering, alleging cruel and unusual punishment after he was classified as an escape risk and moved to housing where he was deprived of cleanliness, sleep, and peace of mind. However, his damages claims were deemed frivolous, not based on its facts or a decision that no constitutional rights had been violated, but because he was barred by the PLRA from recovering damages for emotional suffering. Harper is one of many incarcerated people whose claims may be tallied as “strikes” by the strict definitions of the PLRA, despite outlining significant, real-world suffering. ↩
For example, prison officials allegedly retaliated against Nathaniel Brazill for complaining to a state senator about censorship of a book that recounted the abuse of people in jail. He subsequently lost his job as a Certified Law Clerk. However, despite the fact that the court found his free speech claim to be plausible, he was unable to get compensation because he could not show a physical injury. ↩
In one case, Daniel Mayfield alleged that he was not allowed to practice his religious ceremonies or have access to religious runestones. He was not able to seek compensation, though the court found that his rights may have been violated by the prison. ↩
In West Virginia, Benjamin Patino Lopez was allegedly excluded from rehabilitative programming because he is Hispanic, and was subsequently prescribed anti-depressants. However, he could not show a physical injury, and therefore could not receive any compensation for the violation of his rights. ↩
For example, Aaron Isby-Israel was unable to show physical injury after spending more than 11 years in solitary confinement; while the court found the harm he suffered to be “obvious,” he was unable to recover money damages because the harm was not physical in nature. ↩