The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem

Annals of the American Academy of Political and Social Science, Forthcoming

U of Michigan Public Law Research Paper No. 469

22 Pages Posted: 29 Aug 2015 Last revised: 22 May 2017

See all articles by Margo Schlanger

Margo Schlanger

University of Michigan Law School

Date Written: July 8, 2015

Abstract

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 symposium. Indeed, every prison in California is subject to numerous ongoing court orders governing conditions of confinement. This article examines why California is different. It argues California’s very large bar includes a critical mass of highly expert prisoners’ rights lawyers. Working for both non-profits 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 nothwithstanding very substantial financial hurdles. They continue to litigate old and new cases, but ongoing challenges pose a real threat to the fragile litigation ecosystem they have created.

Keywords: prison, inmate, litigation, civil rights, Realignment

JEL Classification: K41

Suggested Citation

Schlanger, Margo, The Just-Barely-Sustainable California Prisoners’ Rights Ecosystem (July 8, 2015). Annals of the American Academy of Political and Social Science, Forthcoming; U of Michigan Public Law Research Paper No. 469. Available at SSRN: https://ssrn.com/abstract=2652483 or http://dx.doi.org/10.2139/ssrn.2652483

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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