June 16, 2009

VIII. The PLRA’s Effect on Prisoners’ Access to the Courts

The effect of the PLRA on prisoners’ access to the courts was swift and devastating. Between 1995 and 1997, federal civil rights filings by prisoners fell 33 percent, despite the fact that the number of incarcerated persons had grown by 10 percent in the same period.[137] By 2001 prisoner filings were down 43 percent from their 1995 level, despite a 23 percent increase in the incarcerated population.[138] By 2006, the number of prisoner lawsuits filed per thousand prisoners had fallen 60 percent since 1995.[139]

If the effect of the PLRA were to selectively discourage the filing of frivolous or meritless lawsuits, as its sponsors predicted, then we would expect to find prisoners winning a larger percentage of their lawsuits after the law’s enactment than they did before. But the most comprehensive study to date shows just the opposite: since passage of the PLRA, prisoners not only are filing fewer lawsuits, but also are succeeding in a smaller proportion of the cases they do file.[140] This strongly suggests that, rather than filtering out meritless lawsuits, the PLRA has simply tilted the playing field against prisoners across the board. The author of a comprehensive study on the impact of the act concludes that “the PLRA’s new decision standards have imposed new and very high hurdles so that even constitutionally meritorious cases are often thrown out of court.”[141]

The PLRA has also apparently resulted in a significant decline in judicial oversight of conditions in correctional facilities. Between 1995 and 2000, the number of states with less than 10 percent of their prison populations under court supervision more than doubled, from 12 to 28.[142] After tracing the history of US prison litigation from the 1960s to the present, one scholar recently concluded that “the PLRA has contributed to a major decline in the regulation of prisons and jails by court order.”[143] In the absence of other methods of oversight, this decreased monitoring by the courts is cause for concern.

Former director Woodford told Human Rights Watch that she believes the PLRA has had a negative effect on conditions in US prisons:

I do think the PLRA does need to be reformed. I think that there’s prison experts around the country who would agree with that.... I’m told that many people in [the American Correctional Association] believe that as well. That they’re starting to see abuses.... A lot of the corrections professionals were telling me that they had concerns that a lot of the steps forward they’d made in Texas were reverting because of the PLRA. And I can see that happening in California too.[144]

Former director Martinez similarly believes that the obstacles erected by the PLRA have a negative effect on conditions for incarcerated youth: “I think they need advocacy from the outside. I think that without having either legal advocacy or other advocacy, the conditions at these facilities will continue to deteriorate.”[145]

[137] Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1634.

[138] Schlanger, “Inmate Litigation,” Harvard Law Review, pp. 1559-60.

[139] Schlanger and Shay, “Preserving the Rule of Law in America's Jails and Prisons,” University of Pennsylvania Journal of Constitutional Law, pp.141-42.

[140]Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1664 (“the average likelihood of plaintiffs’ success is lower, not higher, on the post-PLRA docket”).

[141] Schlanger, “Inmate Litigation,” Harvard Law Review, p. 1644.

[142]Commission on Safety and Abuse in America’s Prisons, “Confronting Confinement,” pp. 85-86.

[143] Margo Schlanger, “Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders,” New York University Law Review, vol. 81, 2006, p. 602.

[144] Human Rights Watch telephone interview with Jeanne Woodford, October 29, 2008. However, this view is not unanimous. Martin Horn, Commissioner of the New York City Department of Correction, has stated that “[t]here is no real evidence any of [the PLRA’s] prudent rules have resulted in the denial of access to the courts on the part of state or local inmates. The concerns [PLRA critics] express are speculative and theoretical.” Letter from Martin F. Horn to Honorable John Conyers and Honorable Lamar Smith, April 10, 2008, p. 4.

[145] Human Rights Watch telephone interview with Orlando Martinez, April 16, 2009.