You're Out!: Three Strikes Against the Plra's Three Strikes Rule

• Publication year: 2023

You're Out!: Three Strikes Against the PLRA's Three Strikes Rule

Kasey Clark
University of Georgia School of Law, kbc49597@uga.edu

You're Out!: Three Strikes Against the PLRA's Three Strikes Rule

Cover Page Footnote

* J.D. Candidate, 2023, University of Georgia School of Law; M.A., 2020, University of Georgia; B.A. 2018, University of Georgia.

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YOU'RE OUT!: THREE STRIKES AGAINST THE PLRA'S THREE STRIKES RULE

Kasey Clark^*

As federal court caseloads increased in the twentieth century, concerned jurists and academics pointed their fingers at many potential culprits. One culprit in particular, however, caught the attention of Congress: suits brought by prisoners. To curtail what it believed was an influx of frivolous prisoner litigation, Congress passed the Prison Litigation Reform Act (PLRA) in 1996. One provision of the PLRA, known as the "three strikes rule," prohibits a prisoner from proceeding in forma pauperis if three or more of the prisoner's prior actions or appeals have been dismissed as frivolous or malicious or for failure to state a claim unless the prisoner alleges he is under imminent danger of serious physical injury.
This Note argues that the courts should dismantle the PLRA's three strikes rule in the face of legislative inaction. First, the three strikes rule is contrary to Supreme Court precedent that recognizes a constitutional right for prisoners to file civil rights claims. Moreover, the rule's imminent danger exception does not cure its constitutional deficiencies. Finally, the rule has failed to accomplish its goal of filtering out frivolous claims while ensuring meritorious claims are heard.

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Table of Contents

I. Introduction....................................................................781

II. Background....................................................................782

A. IDENTIFYING A PROBLEM..........................................783
B. LEGISLATIVE HISTORY AND CONGRESS'S GOALS........784
C. PASSAGE AND THE THREE STRIKES RULE..................788

III. Analysis.........................................................................790

A. UNCONSTITUTIONAL WHEN APPLIED TO NONFRIVOLOUS CIVIL RIGHTS CLAIMS...................................................790

1. Filing Costs and Prisoners' Need for IFP........790
2. The Constitutional Connection.........................792
3. The Constitutional Challenge..........................796

B. INSUFFICIENCY OF THE IMMINENT DANGER EXCEPTION .....................................................................................798
C. THE UNINTENDED CONSEQUENCES...........................801

1. Surface-Level Progress.....................................801
2. The Unavoidable Byproduct............................. 802

IV. Conclusion....................................................................804

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I. Introduction

This year, in virtually every first-year constitutional law course across the country, students will read Justice Marshall's seminal explanation of constitutional supremacy: "If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply."¹ But a jurisprudential principle so fundamental that it has become a rite of passage in American legal education now seems to ring hollow in the federal judiciary, at least under the courts' interpretations of the Prison Litigation Reform Act's (PLRA) three strikes rule.²

The three strikes rule provides that a prisoner may not file or appeal a civil action in forma pauperis (IFP)³ in federal court if three or more of the prisoner's prior actions or appeals were "frivolous, malicious, or fail[ed] to state a claim upon which relief [could] be granted, unless the prisoner is under imminent danger of serious physical injury."⁴ When applicable, this provision places a permanent prohibition on prisoners' abilities to proceed IFP, subject only to its imminent danger exception.⁵ This Note argues not only that the three strikes provision is incompatible with the Constitution but also that its imminent danger exception does not cure its constitutional deficiencies and that it has managed to accomplish precisely what Congress sought to avoid. For those reasons, this Note concludes that the courts should heed Justice Marshall's words and begin the constitutional dismantling of the three strikes provision.

Part II of this Note provides background about the history of IFP laws in the United States as well as the legislative history of the PLRA. Part III explains why the three strikes provision is unconstitutional, particularly in the context of § 1983 suits, and

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why the imminent danger provision is not an adequate backstop for ensuring that prisoners' constitutional rights are protected. Part III also draws on recent data indicating—distinct from any constitutional argument—that the three strikes rule excludes meritorious prisoner claims from being heard, a result that Congress swore against. Finally, Part IV concludes that the courts, not Congress, are best positioned to stop the ongoing constitutional violations taking place under the three strikes rule.

II. Background

Providing indigent litigants access to justice is steeped in legal tradition, dating back to the Magna Carta.⁶ Allowing indigent litigants to bring their claims to court is "deeply rooted in England's legal history,"⁷ yet it took some time for Congress to make it the law of the United States.⁸ Congress passed the first IFP statute in 1892 to prove, as one representative put it, that the government, "having established courts to do justice to litigants," would not "admit the wealthy and deny the poor entrance to them to have their rights adjudicated."⁹ Since the passage of the IFP statute, access to the courts for indigent litigants has been established as a constitutional requirement and is considered fundamental by many because of the message it sends about our justice system.¹⁰ For instance, some justices have contended that closing the courthouse doors to

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indigent litigants "only reinforce[s] in the hearts and minds of our society's less fortunate members the unsettling message that their pleas are not welcome."¹¹ Unfortunately for those justices and indigent prisoner litigants, the legislature and courts lost sight of these lofty ideals somewhere along the way.

A. IDENTIFYING A PROBLEM

During the 1970s and 1980s, judges and commentators became fixated on what they perceived to be a pressing issue: overburdened federal courts.¹² What commentators did not fully agree upon, however, was the cause of the problem. For example, then-Chief Justice Burger pinned the blame on an uptick in litigiousness in American society.¹³ Others believed the strain on federal courts stemmed from a preference for having one's case heard by a federal judge rather than a state or local judge.¹⁴ Without consensus about the source of the problem, however, commentators were unable to agree on a solution.¹⁵ While some thought that additional

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judgeships were needed,¹⁶ others believed that alternative dispute resolution was the best solution.¹⁷ Still others believed that any uptick in federal litigation was no problem at all. Rather, these scholars believed that "a formidable amount of federal litigation [was] a good thing, particularly if insensitivities to constitutional rights [were] not being remedied by other social institutions."¹⁸

B. LEGISLATIVE HISTORY AND CONGRESS'S GOALS

While Congress did not buy that a litigious American society or a preference for federal judges was causing federal courts to become overburdened, one potential source did catch its attention: prisoner litigation.¹⁹ Prisoner litigation had been cited as another culprit for the increase in cases when caseloads became a salient topic in legal literature in the 1970s and 1980s, and these scholars' findings did not fall on deaf ears.²⁰ On May 25, 1995, Senator Bob Dole introduced in the Senate "a bill to reform prison litigation"—the Prison Litigation Reform Act of 1995.²¹ According to Senator Dole, the law was necessary because, "[o]ver the past two decades, [the country had] witnessed an alarming explosion in the number of lawsuits filed by State and Federal prisoners."²² Senator Dole perceived this influx of litigation as a problem because

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"[u]nfortunately, prisoner litigation does not operate in a vacuum. Frivolous lawsuits filed by prisoners tie up the courts, waste valuable judicial and legal resources, and affect the quality of justice enjoyed by the law-abiding population."²³

Presumably, legislators would have had no issue with allocating judicial resources towards prisoner suits if they perceived those suits to be meritorious. Senator Jon Kyl, however, a cosponsor of the bill,²⁴ told the Senate that "[m]ost inmate lawsuits are meritless"²⁵ and cited caselaw that he believed supported his assertion.²⁶ Otherwise, debate on the Senate floor following the bill's introduction focused very little on the caseload of federal courts. Instead, the senators seemed more eager to express their tough-on-crime agendas.²⁷ Senator Kyl led the discussion, saying that "[c]riminals should not be given a special privilege that other Americans do not have. The only thing different about a criminal is that he has raped, robbed, or killed. A criminal should not be rewarded for these actions."²⁸ Senator Kyl would later add that he believed the PLRA's value was that it "sen[t] a message that prison is not necessarily a nice place."²⁹

While working its way through Congress, the PLRA received very little substantive debate.³⁰ When debate on the PLRA occurred, however, it usually featured "an emphasis on the most ludicrous and absurd prisoner lawsuits ever filed. Senators even compiled

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several David Letterman-style 'top ten' lists exploring the most farcical requests...