Slamming the Courthouse Door: 25 years of evidence for repealing the Prison Litigation Reform Act

This Clinton era law makes it harder for incarcerated people to bring, win, and settle cases when their basic rights are violated.

by Andrea Fenster & Margo Schlanger

Twenty-five years ago today, in 1996, President Bill Clinton signed the Prison Litigation Reform Act. The “PLRA,” as it is often called, makes it much harder for incarcerated people to file and win federal civil rights lawsuits. For two-and-a-half decades, the legislation has created a double standard that limits incarcerated people’s access to the courts at all stages: it requires courts to dismiss civil rights cases from incarcerated people for minor technical reasons before even reaching the case merits, requires incarcerated people to pay filing fees that low-income people on the outside are exempt from, makes it hard to find representation by sharply capping attorney fees, creates high barriers to settlement, and weakens the ability of courts to order changes to prison and jail policies.

When the PLRA was being debated, lawmakers who supported it claimed that too many people behind bars were filing frivolous cases against the government. In fact, incarcerated people are not particularly litigious. Instead, they often face harsh, discriminatory, and unlawful conditions of confinement — and when mistreated, they have little recourse outside the courts. And when incarcerated people do bring lawsuits, those claims are extremely likely to be against the government since nearly all aspects of life in prison are under state control. While prison and jail officials may occasionally feel overwhelmed by these lawsuits, cutting off access to justice ensures only that civil rights violations never reach the public eye, not that such violations never occur.

The PLRA should be repealed. It was bad policy in the 1990s — an era full of unfair, punitive, and racist criminal justice laws — and allowing it to continue today is even worse policy.

The rate of civil rights filings in federal court immediately dropped following the passage of the Prison Litigation Reform Act. And, in 1996, when the PLRA was passed, the frequency of lawsuits from incarcerated people was not on the rise at all; it had already declined from its late 1970s peak.

The PLRA limits access to meaningful justice:

The PLRA hinders court access for incarcerated people who are trying to file civil cases — which tend to be mostly civil rights cases. It does this by making these cases harder to bring, harder to win, and harder to settle.

And when incarcerated people manage to overcome those high barriers and win a lawsuit, the PLRA limits the ability of the courts to enforce policy changes through court orders.

• Exhaustion rule: The PLRA makes many lawsuits non-starters by requiring cases to be dismissed if plaintiffs have failed to “exhaust” all of the prison or jail’s internal administrative grievance processes before taking their case to court. Working through these administrative processes can be complicated, require meeting difficult deadlines, and often prove fruitless. This allows suits to be dismissed for absurd and unfair reasons; for example, when grievances were filed in the wrong color ink or failed to meet incredibly tight deadlines as short as two or three days in some states. (See sidebar for examples of how the exhaustion rule can cause civil rights cases to be thrown out for minor mistakes in the grievance process.)
• Three strikes rule: Indigent people on the outside can have federal filing fees waived by bringing lawsuits in forma pauperis. But the PLRA makes incarcerated people, who make $0.14 to $0.63 per hour on average, ineligible for this waiver, meaning they must pay the $350 federal filing fee. While most incarcerated people may pay these fees by installment over time, the PLRA’s Three Strikes Rule states that after filing three claims that a judge decides are frivolous, malicious, or do not state a proper claim, incarcerated plaintiffs can be required to pay fees upfront with few exceptions. This places lawsuits out of reach for nearly all the affected individuals.

• Physical injury requirement: Incarcerated people are allowed to sue over unlawfully inflicted physical injury, but the PLRA restricts the remedies available in cases where people are alleging only mental or emotional harm. Many courts have interpreted this to mean that people cannot receive money damages for their prison/jail injuries unless they can show that they suffered extremely serious physical injury. Many courts have also found that this provision applies even to Constitutional claims about, for example, free speech, religious freedom, discrimination, and due process, thereby denying incarcerated people the ability to seek financial compensation for the violation of their Constitutional rights.
• Discouraging experienced attorneys from taking cases: To make it economically feasible for lawyers to represent civil rights plaintiffs, Congress has entitled civil rights plaintiffs who win their cases to recover reasonable hourly attorneys’ fees from defendants. However, the PLRA imposes two sharp additional limits for incarcerated plaintiffs: it caps recoverable attorneys’ fees at a below-market rate, and insists that these fees total no more than 150% of any damages awarded to the plaintiff. But damages for incarcerated people are generally quite low, both because they don’t experience lost wages, and because (under the PLRA’s physical injury provision, described above) they often cannot recover more than nominal damages absent significant physical injury.
  
  The result is that — knowing incarcerated plaintiffs cannot win reasonable attorney’s fees — civil rights lawyers are deterred from taking them on as clients. Thus, an overwhelming share of incarcerated people file their cases “pro se,” meaning on their own behalf. In 2020, incarcerated civil rights plaintiffs had lawyers in only 7.6% of their cases, compared to 89.8% of civil cases not involving incarceration.

• Undermining settlements: In most types of litigation, parties have a lot of latitude to craft settlement agreements that fit their needs. However, the PLRA sharply limits court enforcement of settlements that include “prospective relief” — that is, a change to policy or practice going forward; enforcement is allowed only if the court has specifically found that these changes are necessary to cure the violation of a federal right. Some courts have interpreted this requirement to mean that defendants cannot merely agree that a settlement is appropriate; instead, these courts have held that either the court must have enough facts to determine that there was a violation of a federal right, or the parties must clearly stipulate that there was one. But one of the main reasons defendants in all types of cases settle is to avoid those kinds of damaging admissions. By making it so hard for incarcerated plaintiffs to settle, the PLRA takes away their best chance at a positive outcome.

For individual incarcerated people, these various barriers add up to a system where it is next to impossible to get any relief from the courts.

The PLRA also makes court orders less effective:

In other types of civil cases, judges can issue court orders, which can direct people or parties to take or not take certain actions. Historically, court orders were a major source of regulation and oversight for prisons and jails. However, the PLRA limits the ability of the courts to make these types of adjustments to prison or jail policy by shortening the lifespan of court orders and making it easier for them to be terminated. Under the PLRA, defendants can ask the court to review and possibly terminate orders about prison conditions after just two years, even if the prison or jail has not fully met all (or any) of the terms of the order. In addition, the legislation makes it harder for a court to set a population cap (which might require a jurisdiction to decarcerate) as a remedy for civil rights violations.

The PLRA made it harder for plaintiffs to win court oversight over prisons and jails, and easier for officials to end existing orders. In the years after its passage, the portion of the incarcerated population that was covered by court-ordered protection dropped sharply.

Recommendation:

It is time for Congress to repeal the Prison Litigation Reform Act. Incarcerated people do not lose all of their rights at the prison or jail door. Yet all too often, their basic freedoms are violated inside these massive and expensive public institutions, which operate largely outside of public view and with little oversight. Correctional facilities are obligated to fulfill their duties to the people under their control, and it is in the public’s interest to ensure that happens.

Yet the PLRA unjustly targets incarcerated people with disadvantageous procedural limits, making it almost impossible for incarcerated people to have their day in court, earn monetary damages for their suffering, and get and enforce prospective relief to prevent violations in the future. Repealing the PLRA is a necessary step towards ensuring that people behind bars have real and meaningful access to justice.

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The full version of this report, including detailed appendices, is at https://www.prisonpolicy.org/reports/PLRA_25.html..