The Just Barely Sustainable California Prisoners’ Rights Ecosystem

• Date: 01 March 2016
• DOI: 10.1177/0002716215598972
• Author: Margo Schlanger
• Published date: 01 March 2016
• Subject Matter: I. Origins of the Crisis

62 ANNALS, AAPSS, 664, March 2016

DOI: 10.1177/0002716215598972

The Just Barely

Sustainable

California

Prisoners’

Rights

Ecosystem

By

MARGO SCHLANGER

598972ANN The Annals of the American AcademyThe California Prisoners’ Rights Ecosystem

research-article2015

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 numer-

ous ongoing court orders governing conditions of con-

finement. 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, notwith-

standing very substantial financial hurdles. They con-

tinue to litigate old and new cases, but ongoing

challenges pose a real threat to the fragile litigation

ecosystem they have created.

Keywords: prison; litigation; civil rights; Realignment

Margo Schlanger is the Henry M. Butzel Professor of

Law at the University of Michigan.

NOTE: My thanks to Charis Kubrin, Carroll Seron, and

Anjuli Verma, for their encouragement of this article. I

owe thanks, as well, to the lawyers I interviewed:

Michael Bien, of Rosen, Bien, Galvan & Grunfeld

(March 25, 2015, April 10, 2015); Peter Eliasberg,

Legal Director of the ACLU of Southern California

(March 31, 2015); Ron Kaye, of Kaye, McLane,

Bednarski & Litt (April 10, 2015); and Dan Stormer, of

Hadsell Stormer & Renick (telephone interview, April

27, 2015; email correspondence, May 23, 2015). I have

all the notes from those interviews on file. I wish to

acknowledge the generous support of the William W.

Cook Endowment of the University of Michigan. For

details on data used in this article, including replication

information, see margoschlanger.net (publications).

Full information—docket sheets, documents, and a

case summary—for all cases listed here with only their

docket numbers is available from http://www.clearing-

house.net/results.php?searchSpecialCollection=37.

Correspondence: mschlan@umich.edu

THE CALIFORNIA PRISONERS’ RIGHTS ECOSYSTEM 63

The Nationwide Decline in Court-Related

Supervision of Jails and Prisons

Over the past two decades, the United States has seen a marked decline in the

frequency and depth of court interventions in prisons and jails. Prisoners’

rights litigation has not disappeared, but it has been drastically curtailed by the

1996 Prison Litigation Reform Act (PLRA), along with myriad other forces,

doctrinal and political. The PLRA, enacted as part of the Newt Gingrich

“Contract with America,” undermined prisoners’ ability to bring, settle, and

win lawsuits (Schlanger 2003, 2006). The PLRA’s “administrative exhaustion”

provisions conditioned court access on prisoners’ meticulously correct prior

use of onerous and error-inviting prison grievance procedures (Woodford v.

Ngo 2006). The statute also increased filing fees (28 U.S.C. § 1915(b)),

decreased attorneys’ fees (42 U.S.C. § 1997e(d)(2-3)), and limited damages

(42 U.S.C. § 1997e(e)). It subjected injunctive settlements to the scope limita-

tions usually applicable only to litigated injunctions (18 U.S.C. § 3626(a)(1)

(A)). It made prison and jail population caps—previously common (Schlanger

2013)—far more difficult to obtain (18 U.S.C. § 3626(a)(3)). And it put in

place a rule inviting frequent relitigation of injunctive remedies, whether set-

tled or litigated (18 U.S.C. § 3626(b)).

The resulting impact on jail and prison litigation has been extremely substan-

tial. Significant prisoners’ rights cases certainly remain on court dockets, and new

ones continue to be filed—mostly by a dozen or so prisoners’ rights advocacy

organizations, private counsel with a commitment to prisoners’ rights, and topic-

specific advocacy organizations that do some prisoners’ rights work. But since the

PLRA’s enactment, there has been a sharp decline in prisoner civil rights filings

and plaintiffs’ victories as well as court-ordered regulation of jails and prisons.

Prisoners’ rights lawsuits seeking either damages or court supervision have cor-

respondingly receded substantially as threats against and sources of regulation of

correctional facilities. I have presented the statistics in other work (Schlanger

2015), but to summarize a few points:

•In the early 1980s, 18 percent of local jails (housing 51 percent of jail

inmates) and 27 percent of state prisons (housing 43 percent of state prison-

ers) reported to the Department of Justice that they were subject to some

kind of court order governing conditions of confinement. Those numbers

remained nearly as high for more than 15 years after the PLRA’s enactment.

But in the most recent data collection, in 2005 and 2006, reported court

orders covered just 20 percent and 22 percent of jail and prison populations,

respectively.

•The rate of prisoner civil rights filings in federal court peaked in 1981 at

29.3 per 1,000 prisoners; in more recent years, the (lower) peak was at 24.9

filings in 1994. The rate in 2012, the most recent year for which full data are

available, was 10.2 filings per 1000 prisoners.