Margo Schlanger

The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem

Nationwide, litigation currently plays a far smaller role as a corrections oversight mechanism than in decades past, a change largely caused by the 1996 Prison Litigation Reform Act (PLRA). Yet no such decline is evident in the nation’s most populous state, California, where prisoners’ rights litigation remains enormously influential and was the trigger to the criminal justice “Realignment” that is the subject of this volume. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement. This article examines why California is different. It argues that California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers. Working for both nonprofits and for-profit firms, they benefited from a pipeline of large-scale, pre-PLRA, fees-paying cases that sustained them while they learned to cope with the statutory obstacles. And the Ninth Circuit’s hospitable bench awarded them some favorable fee-related rulings in support of their coping strategies. In short, they learned how to—just barely—maintain a prisoners’ rights docket, notwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

Determinants of Civil Rights Filings in Federal District Court by Jail and Prison Inmates

This article uses panel data estimation techniques to examine the relation between the number of federal court civil filings by inmates and jail and state prison populations (and, hence, the relation between jail and prison inmate filing rates) both before and after the effective date, in 1996, of the Prison Litigation Reform Act (PLRA). The research issue matters for several reasons. First, the amount of litigation by inmates is a crucial component of the regulatory regime governing jails and prisons and thus what factors drive filings, and by how much, deserves close attention and assessment. In addition, the PLRA was a major congressional attempt to control and ration litigation; understanding its effects in finer gauge seems itself worthwhile. Finally, we hope to show, methodologically, how research about litigation rates can be carried out sensitively, even if the litigation results from case filings by two separate populations. We make three major findings. (1) As expected, inmate filings vary positively with prison population. However, the relationship with jail population is less secure. (2) As the prison proportion of inmates in a particular state increases, so too does the number of filings. (3) The PLRAs passage has significantly lessened but not eliminated this prison proportion effect.

The Politics of "Inmate Litigation"

I feel compelled to respond to a recent student-written Note1 that critiques my Article, Inmate Litigation,2 published last year in the Review. The Note aims to expose my work as an (“at least . . . unconscious”3) exercise in left-leaning political argumentation in the guise of technocratic, quantitative data-crunching. The accusation of covert politics is puzzling. My piece employed careful quantitative and qualitative empirical techniques to evaluate a statute, the Prison Litigation Reform Act (PLRA),4 that restricts the legal rights of some of the most disempowered and vulnerable people in this country. The politics of that inquiry are clear, and I made no attempt to hide them: I think that the outcome of such systematic investigation matters — that it is wrong to curtail litigation rights, even of inmates, if the effect is to deny redress to victims of unconstitutional misconduct or if the policy change is based on false factual arguments. Unlike the Note, that is, I would hold Congress accountable for both the premises on which it rested inmate litigation reform and the results of that reform. The anonymous Note author’s (shocked, shocked!) discovery that my piece was driven by such an agenda, hidden in plain sight, hardly requires much analytic insight. But whatever one’s politics, I believe that there is something to be said for fair and careful use of data, as well. Unfortunately, these qualities are nowhere to be found in the Note. Instead, its author engages both in egregious misreading of my piece — mischaracterizing both my arguments and the data on which they rest — and in illogical argumentation that hides rather than clarifies the meaning and effects of statutory provisions. These failings are particularly unfortunate because they obstruct serious policy debate, which is what my piece attempted to promote. The problem begins with the Note’s frame, which asserts that I attempted but failed to establish that the PLRA’s proponents would, if only