VOLUME 116 APRIL 2003 NUMBER 6 HARVARD LAW REVIEW I ARTICLE INMATE LITIGATION Margo Schlanger TABLE OF CONTENTS INTRODUCTION r557 I. INMATE LITIGATION TRENDS r565 A. The Varied Subject Matter ofInmate Litigation r570 B. Inmate Litigation Rates r575 C. Inmate Filing Rates over Time: The "Deluge" r578 D. OfBabies and Bath Water: The Processing ofInmate Cases r587 II. OUTCOMES IN INMATE CASES (PRIOR TO THE PLRA) r590 A. Outcomes: The Data r593 B. Outcomes: Explanations r605 1. Limited Legal Rights/Exacting Decision Standard , r605 2. Easy Access to Courts r 607 3. The Absence of Counsel r609 4· Obstacles to Settlement. r6 r4 (a) The Impact of the Low Quality of the Docket r6r4 (b) Asymmetric Information r6r6 (c) Low Litigation Costs r6r7 (d) Perceived High External Settlement Costs r6r7 (e) Corrections Culture r620 5. Trial Win Rates r62r 6. Low Damage Awards r622 C. Conclusion r626 III. SEA CHANGE: THE PLRA (AND OTHER 1996 CHANGES) r627 A. Exhaustion r627 B. Filing Fees r628 C. Costs r629 D. Judicial Screening r629 E. No Obligation To Respond r630 F. Telephonic Hearings r630 1555 HeinOnline -- 116 Harv. L. Rev. 1555 2002-2003 1556 HARVARD LAW REVIEW [Vol. 116:1555 G. Limitation on Damages 1630 H. Diversion ofDamages 1631 I. Limitation on Attorneys' Fees 1631 J. Coverage 1632 K. Other Legal Changes Concurrent with the PLRA 1632 IV. LITIGATION EFFECTS OF THE PLRA 1633 A. The Shrinking Inmate Docket.. 1634 1. State Court 1634 2. Habeas 1637 3. Jail and Prison Filings 1641 4. The Impact on Courts of Filing Declines 1642 B. Plaintiffs' Declining Success 1644 1. The Statute and Its Expected Effects 1645 (a) Imposition of a Filing Fee, Payable over Time, for All Civil Actions by Inmates 1645 (b) The Frequent Filer Provisions 1648 (c) Exhaustion 1649 (d) Limitations on Attorneys' Fees 1654 (e) Coverage 1657 (f) Summary of Expected Outcome Effects 1657 2. Observed Trends 1658 V. BROADENING THE FIELD OF VIEW 1664 A. Minimizing Litigation's Burden 1668 B. Reducing Liability Exposure: Overdeterrence, Antideterrence, Underdeterrence 1672 1. Overdeterrence 1672 2. Antideterrence 1677 3. Deterrence/Underdeterrence 1686 C. Operational Effects ofthe PLRA 1690 VI. CONCLUSION 1692 DATA ApPENDIX 1698 A. Putting Together the Dataset 1698 B. Accuracy ofthe Data 1699 1. Nature of Suit Codes 1699 2. Subsequent Activity 1700 3. Federal vs. Nonfederal Inmates 1700 4. "Judgment for" 17°2 5. Damages 1702 6. Class Actions 17°3 C. Grouping Case Categories 17°4 HeinOnline -- 116 Harv. L. Rev. 1556 2002-2003 INMATE LITIGATION Margo Schlanger· In 1995, prison and jail inmates brought about 40,000 new lawsuits in federal court ­ nearly a fifth of the federal civil docket. Court records evidence a success rate for inmate plaintiffs under fifteen percent. These statistics highlight two qualities long associated with the inmate docket: its volume and the low rate of plaintiffs' success. Then, in 1996, Congress enacted the Prison Litigation Reform Act (PLRA), which dramatically altered the litigation landscape, restricting inmates' access to federal court in a variety of ways. This Article examines inmate litigation before and after the PLRA. Looking first at the litigation process itself, it brings together prior research, the results of new quantitative analysis of a comprehensive database offederal district court cases, and interviews and other qualitative inquiry. The Article canvasses filing trends, subject matter, and settled and litigated outcomes, exploring what is happening in each of these areas and why. Then it uses a variety of analytic tools to uncover and assess the PLRA's impact. Most obviously, the PLRA has shrunk the number of new federal filings by inmates by over forty percent, notwithstanding a large increase in the affected incarcerated population. Simultaneously, the statute seems to be making even constitutionally meritorious cases harder both to bring and to win. Finally, the Article looks beyond federal courthouses to the ways litigation affects jail and prison operations. Specifically, it explores agencies' efforts to respond efficiently to the high-volume, low­ probability docket and to reduce their liability exposure, and offers some tentative observations about the PLRA's likely impact on these efforts. The Article suggests in conclusion that use of the PLRA as a model for broader litigation reforms should proceed with enormous caution given the statute's problematic effects. INTRODUCTION n any given day there are over two million people in jail or prison Oin the United States, a population that has nearly quadrupled since 1980. 1 Driven at least in large part by the steep increase in the number of jail and prison inmates, and notwithstanding the nearly complete disappearance of what used to be an active and influential • Assistant Professor, Harvard Law School ([email protected]). Thanks to Harvard Law School, Dean Robert Clark, the Harvard University Center for Ethics and the Professions, and the Harvard University Milton Fund for time and resources to complete this project. And thanks to Elizabeth Alexander, Ted Eisenberg, Dick Fallon, Jerry Frug, Phil Heymann, Howell Jackson, Christine Jolls, Steve Martin, Dan Meltzer, Martha Minow, David Shapiro, Bill Stuntz, Guhan Subramanian, Michael Tonry, Kip Viscusi, Elizabeth Warren, Lucie White, David Wil­ kins, participants in the 2002 Law & Society Conference, and (especially and as always) Sam Bagenstos for helpful comments. Mike Bloch, Lara Garner, Beth Mellen Harrison, and H.L. Rogers provided excellent research assistance, as did Josh Kantor of the Harvard Law School li­ brary reference department. Finally, thanks to the dozens of people, listed below in note 21, who shared their time and thoughts with me in extensive interviews as I prepared to write this Article. 1 See infra Table I.A. 1557 HeinOnline -- 116 Harv. L. Rev. 1557 2002-2003 1558 HARVARD LAW REVIEW [Vol. II6:1555 prisoners' rights movement,z the amount of civil litigation brought by inmates in federal court increased steadily during the 1980s, and more steeply in the early 1990S. In 1995, inmates filed nearly 40,000 new 3 federal civil lawsuits - nineteen percent of the federal civil docket.4 About fifteen percent of the federal civil trials held that year were in inmate civil rights cases.S But in the mid-1990S, the state officials who were the most fre­ quent targets of the growing inmate docket were finally able to capi­ talize on the rightward move in American politics6 and mobilize a ma­ jor campaign against the lawsuits. Building on years of (noninmate) 2 See generally RONALD BERKMAN, OPENING THE GATES: THE RISE OF THE PRISONERS' MOVEMENT (1979); James B. Jacobs, The Prisoners' Rights Movement and Its Im­ pacts, in NEW PERSPECTIVES ON PRISONS AND IMPRISONMENT 33 (1983) [hereinafter Ja­ cobs, Prisoners' Rights Movement]. 3 To compute the figures for 1995, I followed the Administrative Office of the U.S. Courts and used a fiscal year; fiscal 1995 runs from October 1,1994 to September 30,1995. This and all filing and outcome figures in this Article are derived from a database compiled by the Administrative Office of the U.S. Courts and cleaned up by the Federal Judicial Center, the research arm of the federal court system. The database includes each and every case "termi­ nated" (that is, ended, at least provisionally) by the federal district courts since 1970. The data, that is, cover not just a sample but the entire universe of federal civil litigation (except for bank­ ruptcy filings in the bankruptcy courts). The Federal Judicial Center lodges this database for public access with the Inter-University Consortium for Political and Social Research, which main­ tains it at http://www.icpsr.umich.edu. See Federal Judicial Center, Federal Court Cases: Inte­ grated Data Base, 1970--2000 (pts. 38-55, 64-65, 73-74, 86-88, 98, 103-04, II5-17 (civil termina­ tions 1970--2000), II8 (civil pending 2000» (ICPSR Study No. 8429, last updated Apr. 25, 2002) [hereinafter Federal Court Cases Database, 1970--2000], at http://www.icpsr.umich.edu:8080/ ICPSR-STUDY/08429·xml; Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2001 (pts. 2 (civil terminations), 3 (civil pending)) (ICPSR Study No. 3415, last updated June 19, 2002) [hereinafter Federal Court Cases Database, 2001], at http://www.icpsr.umich.edu:8080/ ICPSR-STUDY/03415.xml. The Federal Judicial Center also publishes periodic reports culled from this dataset. Except where otherwise noted, my figures are not from these written reports, but are instead based on my extensive analysis compiling and manipulating the raw data. This work is discussed in the Data Appendix to this Article, which appears at its end, but the basic idea is not complicated: I put all the different years of data together and eliminated duplicates. I cite my compiled dataset and all other supporting analysis as Margo Schlanger, Inmate Litigation Technical Appendix (2003) [hereinafter Schlanger, Technical Appendix], available at http://www. law.harvard.edu/faculty/schlanger/projects/index.php. This website posts the code I used to com­ pile the dataset, run the charts, and perform other analyses discussed in this Article. 4 The "civil docket" I refer to does not include habeas corpus petitions and other like actions by prisoners seeking collateral criminal review. If such filings were included, both the number of inmate filings and their proportion of the docket would be much higher. I omit them because I think they are properly conceptualized as part of the criminal, rather than civil, justice system. S More precisely, of trials in federal nonhabeas civil cases "terminated" in 1995, fifteen percent were in inmate civil rights cases. The figure remains consistent whether the set of trials includes only cases whose recorded judgments are trial verdicts, or any case ended by any procedural means during or after a trial.