How Prisoners’ Rights Lawyers are Preserving the Role of the Courts

37 Pages Posted: 25 Oct 2014 Last revised: 10 Nov 2014

See all articles by Margo Schlanger

Margo Schlanger

University of Michigan Law School

Date Written: August 11, 2014

Abstract

This article is part of the University of Miami “Leading from Below” Symposium. It canvasses prisoners’ lawyers strategies prompted by the 1996 Prison Litigation Reform Act. The strategies not only comply with the statute’s limits but also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. Part I summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes in prison litigation, but demonstrates there are still many cases and situations in which courts continue to play a role. Part II looks at three methods by which plaintiffs and defendants can jointly obtain injunctive-type relief in prison cases — by crafting stipulations that comply with the PLRA’s constraints, by structuring the relief as a conditional dismissal, or by setting up the possibility of state-court enforcement. Part III examines plaintiffs’ coping methods for the PLRA’s provisions easing the path to termination of decrees, whether litigated or consent. Two types of preparation for a termination motion have emerged. First, the parties sometimes agree to stretch out the remediation period more than the PLRA’s default two years. Second, plaintiffs have worked to ensure that they are collecting sufficient information to inform their potentially hurried response to a termination motion.

It is my hope that the examples presented can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents.

Keywords: prison, litigation, civil rights, prisoners' rights

JEL Classification: K41

Suggested Citation

Schlanger, Margo, How Prisoners’ Rights Lawyers are Preserving the Role of the Courts (August 11, 2014). University of Miami Law Review, Forthcoming; U of Michigan Public Law Research Paper No. 428. Available at SSRN: https://ssrn.com/abstract=2478884 or http://dx.doi.org/10.2139/ssrn.2478884

Margo Schlanger (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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