The jurisprudence of the PLRA: inmates as "outsiders" and the countermajoritarian difficulty.

• Author: Robertson, James E.
• Position: Prison Litigation Reform Act

"[J]udicial intervention is indispensable if constitutional dictates--not to mention considerations of basic humanity-are to be observed in the prisons." (1)

"[The federal courts are] havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are non-conforming victims of prejudice and public excitement." (2)

1. INTRODUCTION

   In Harris v. Fleming, (3) the Seventh Circuit Court of Appeals spoke for many federal courts when it observed that "[j]udges are not wardens, but we must act as wardens to the limited extent that unconstitutional prison conditions force us to intervene when those responsible for the conditions have failed to act." (4) This admission is revealing of judicial perception and motive: rather than characterizing its actions as discretionary, the court asserted that it had no choice but to join the fray.

   In 1996, Congress enacted the Prison Litigation Reform Act (PLRA) (5) partly in response to the judicial philosophy expressed in Harris. Rather than defining judicial intervention as a "force[d]" response to neglectful prison staff, congressional backers portrayed judges as liberal busybodies giving aid and comfort to litigious inmates. (6) After scant deliberation, (7) the Congress passed and President Clinton signed legislation of far reaching consequence for courts, corrections, and the Constitution. (8) The PLRA constrains inmates by requiring them to exhaust administrative remedies before bringing suit; (9) pay filing fees; (10) and forgo damages for emotional injuries absent a prior physical injury. (11) While the Act permits the judiciary to sua sponte dismiss claims failing to state a cause of action, (12) its power to grant prospective relief cannot extend beyond correcting the right in question; (13) and the relief can be terminated within two years or, in some instances, sooner. (14) In addition, the Act caps fees for attorneys (15) and special masters. (16)

   Despite the growing literature about this profoundly important legislation, (17) the jurisprudence of the PLRA remains unstudied. This Article locates the PLRA amid the long-running debate over the interpretative authority of Article III courts. The federal judiciary has experienced a crisis of legitimacy since Alexander Bickel labeled it a "deviant institution" because of its capacity to frustrate majority will. (18) This Article contends that the PLRA represents the assertion of majoritarian supremacy over constitutional courts accused of exceeding their legitimate, limited authority. (19)

   The Article proceeds in the following manner. The following section describes the collision between two models, one directed at prison reform and the other dominating constitutional law. From the majoritarian perspective, prison reform judges fell victim to "Lochnerization:" (20) they engaged in judicial policy making in the name of adjudication. By enacting the PLRA, Congress sought to forbid judicial overreaching.

   The Article next questions whether inmates can secure adequate constitutional protection from abusive penal practices. The answer reveals that prisoners' rights advocates are cornered: the PLRA limits the remedial powers of federal courts; (21) and, in deference to majoritarian supremacy, the judiciary has rejected challenges to its constitutionality. (22)

   I conclude by positing a "justice gap" between underlying constitutional norms and the case law providing for a piecemeal prisoners' bill of rights. This Article shows that the cornerstone of prisoners' rights--the Eighth Amendment prohibition of cruel and unusual punishment (23)--embodies underenforced constitutional norms. Moreover, its content reveals an inclusiveness sadly absent from the majoritarian paradigm of constitutional law.

2. INSTITUTIONAL REFORM AND THE COUNTERMAJORITARIAN DIFFICULTY

   In the decade preceding the PLRA, many federal judges became managers of systemic prison reforms and thus oversaw directly, or through special masters, the day-to-day operations of correctional institutions. (24) In some instances, a federal district judge effectively took control of a state's entire prison system. (25) Feeley and Rubin characterized "the massive intervention into state corrections ... [as] the most striking example of judicial policy making" in modern America. (26) Moreover, they concluded that judicially engineered prison reform "violated nearly every accepted principle for controlling the judicial branch." (27)

   This manner of prison reform directly confronted what Bickel famously called the "counter-majoritarian difficulty" (28)--that democracy means majority rule and the power of the federal judiciary to impede majority rule renders judicial review a "deviant institution." (29) Majoritarians posit a distinction between law and policy; they envisage a minimal, deferential role for the courts, with judges reading the open-ended provisions of the Constitution in light of majority opinion and the policy preferences of the elected branches of government. (30)

   The Framers of the Constitution did not share Bickel's concerns. They distrusted majority role (31) and embraced natural rights. Their notion of democracy rested the Lockean individual rather than the collective good. (32) "To Locke," wrote one commentator, "the law is an institutional device that connects the different perspectives of individuals by harmonizing the natural rights that they equally enjoy." (33)

   Long before Bickel's time, however, majoritarian supremacy became equated with democracy. (34) A constitutional sea change had occurred in 1937 with the passing of the so-called Lochner era:

   The Lochner era, a period of Supreme Court jurisprudence spanning from 1899 to 1937, has long been inscribed into constitutional legend. The legend characterizes the Lochner era as one of the darkest chapters in the saga of constitutional jurisprudence.... During this time, the Court struck down numerous progressive laws involving economic and social welfare.... The Lochner era ended abruptly in 1937 Court began consistently to uphold New Deal legislation. (35) The elevation of Felix Frankfurter from New Deal adviser to Associate Justice symbolized the constitutional dominance of majoritarianism in the post-1937 constitutional order. (36) He spoke on behalf of majoritarian supremacy when he announced from the bench that "[c]ourts are not representative bodies. They are not designed to be a good reflection of a democratic society.... We are to set aside the judgment of those whose duty, it is to legislate only if there is no reasonable basis for it...." (37) Law could be purposive but only at the majority's behest.

   Deference became the "central principle of judicial review" in the post-Lochner era. (38) When paired with the rational-basis test, (39) deference stood for the formal separation of law and policy; and when law and policy met in the real world, deference meant that functionaries of the emerging administrative state would not be second-guessed on their policy choices and factual assessments.

   Well into the past century, courts themselves preempted judicial oversight of prisons by their adherence to the hands-off doctrine. (40) It represented an early, extreme form of judicial deference by questioning the competence of courts to grasp prison administration, (41) warning that judicial meddling would embolden inmates to disrespect and disobey their keepers, (42) and positing that federalism shielded state prisons from Article III courts. (43)

   By the late 1960s, however, judges abandoned the hands-off doctrine in the face of horrific prison conditions and brutal prison practices. (44) An ever-rising tide of prisoner lawsuits followed; (45) and the judiciary commenced a transformation "perhaps second in breadth and detail only to the courts' earlier role in dismantling segregation in the nation's public schools." (46)

   While the lower federal courts powered this exercise in judicial policy making, (47) the Supreme Court tried to break its speed. Just ten years after the collapse of the hands-off doctrine, the Supreme Court's decision in Bell v. Wolfish (48) called for post-Lochner deference. (49) The Bell Court indicated that restrictions on inmates would survive constitutional challenge merely by being "reasonably related to the government's interest in maintaining security and order and operating the institution in a manageable fashion." (50) Moreover, in determining reasonableness, judges should defer to prison staff:

   [C]ourts must heed our warning that "[s]uch considerations are peculiarly within the province and professional expertise of correctional officials, and in the absence of substantial evidence in the record to indicate that officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters." (51) Notwithstanding pronouncements of a "new" hands-off doctrine emerging from the Court, (52) Bell did not prevent institutional reform decrees. (53) Indeed, their breadth more than compensated for the gradual shrinkage of prisoners' substantive and procedural rights by the Court. (54) Nor did Bell dampen inmates' thirst for litigation. (55)

   In 1996, Congress finished what Bell had begun: by enacting the PLRA Congress asserted its supremacy over the remedial powers of federal courts. (56) The judiciary, in turn, acquiesced by rejecting constitutional challenges to the PLRA. (57)

   As constitutional "outsiders," replete with their "spoiled identities," (58) inmates had nary a voice in the legislative debate over the proposed legislation. (59) Portrayed as recreational litigators, suing over bad haircuts and the like, (60) they had become "untouchables" (61)--to be kept at arm's length from the civil community. Nor was their exclusion inconsistent with majoritarian supremacy. "[T]he ideal of democracy," wrote Morton J. Horwitz, "came to be understood to have nothing to say about...