UPDATE: REVERSING THE PENDULUM OF PRISONERS' RIGHTS Jim Thomas, Andrew McArthur, and Teresa McGee Department of Sociology (Northern Illinois University) DeKalb, IL - 60115 (11 November, 1998) The so-called "explosion" of prisoner litigation in the mid-1960s and 1970s led to increased prisoners' rights and dramatic prison reforms in virtually all federal and state prisons. However, these reforms may have been short-lived. Ironically, the successes in expanding prisoners' rights have led to a political and judicial backlash in the 1980s, culminating with the federal Prisoner Litigation Reform Act in 1995. The result of this backlash has led to decreased prisoner filings as well as to an increasing reluctance of judges to intervene in prison matters. Here, we examine several consequences of the backlash against prisoners' rights in the 1990s. We suggest that the "tough on crime" ethos characterizing the close of the Twentieth century may have the ironic effect of making prisons and prisoners more, rather than less, difficult to manage. BACKGROUND OF PRISONER LITIGATION Historically, state and federal courts adhered to the "hands-off" doctrine, which held that the judiciary had no business meddling in prison affairs. The hands-off doctrine began eroding with the prisoners' rights movement. "Prisoners' rights" are those Constitutionally-protected rights that prisoners retain as members of our society and dates from the early 1960s, when state prisoners began using federal courts to redress grievances against prison officials. Prisoner litigation, which spawned and fed the growth of prisoners' rights, derives primarily from post-Civil War civil rights legistation, especially Title 42 U.S.C. Section 1983 and the Fourteenth Amendment, which allow federal legal challenges against government officials who, while acting in their official capacity, violate a person's civil rights. The relevant language of the 14th amendment holds that: No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws [emphasis added]. At the same time, Congress passed a civil rights act [Title 42 U.S.C. [Section] 1983), which provides the basis for contemporary civil rights litigation, including that by prisoners. Although modified and renewed several times between 1866-1877, the relevant language of the original civil rights legislation today remains essentially unchanged: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. Since the the federal government began maintaining statistics on prisoner civil rights filings in 1966, prisoners have filed a low of 288 civil rights petitions (1966) to a high of 40,569 (1995). This apparently dramatic increase has prompted legislative and judicial attempts to restrict prisoner access to the courts in the belief that the pendulum driving prisoners' rights has swung too far. This belief is based on the perception that a majority of prisoners file repetitive and frivolous law suits that subvert adminstrative control over prisoners (Doumar, 1994). The mounting hostility toward prisoner rights followed litigation successes that challenged prison policies and conditions through the 1970s, but gradually declined in the 1980s (Eisenberg, 1993; Palmer, 1996). Although criticisms of prisoner litigation began from the inception in the 1960s (Thomas, 1988), a successful concerted assault was not mounted until the early 1990s. RETRENCHMENT: THE ASSAULT OF THE NINETIES Many factors contributed to the roll-back of prisoner litigation in the 1990s, but two are most visible. First, U.S. Supreme Court decisions reflected increased unwillingness to intervene in addressing alleged abuses of power or review complaints of harsh conditions. Second, state and federal statutes reduced prisoners' rights and privileges in order to make prisons more punitive. Court Decisions Recent U.S. Supreme Court decisions make it clear that the federal judiciary has become unsympathetic toward prisoners rights. Typical of these are Farmer v. Brennan (510 U.S. 941, 1994), in which the Court--faced with an Eighth Amendment cruel and unusual prison issue among others--argued that "The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." In Lewis v. Casey (518 U.S. 343, 1996) the court restricted inmate access to legal resources by ruling that prisoners' "access to law" does not require availability of a law library or legal assistance; it requires only access to courts in order to challenge a conviction or prison conditions. Reduced access to law, a higher threshhold of tolerance for harsh conditions, and an increased willingness to grant prison staff latitude in dealing with prisoners suggest that federal courts are no longer an effective venue for protecting prisoner rights. Legislation Between 1994 and 1997, several Bills that were introduced into or passed by Congress could turn back many of the rights that prisoners have gained in the past three decades. A few examples typify the language of legislation proposed or enacted that would subvert prison conditions. One "get tough" bill, the "No Frills Prison Act" (H.R. 169) introduced into the House of Representatives in early 1997, amended the Violent Crime Control and Law Enforcement Act of 1994 to withhold federal funds from states unless they demonstrated that the state prison system: (1) provides living conditions and opportunities within its prisons that are not more luxurious than those that the average prisoner would have experienced if not incarcerated; (2) does not provide to any such prisoner specified benefits or privileges, including earned good time credits, less than 40 hours a week of work that either offsets or reduces the expenses of keeping the prisoner or provides resources toward restitution of victims, unmonitored phone calls (with exceptions), in-cell television viewing, possession of pornographic materials, instruction or training equipment for any martial art or bodybuilding or weightlifting equipment, or dress or hygiene other than as is uniform or standard in the prison; and (3) in the case of a prisoner serving a sentence for a crime of violence which resulted in serious bodily injury to another, does not provide housing other than in separate cell blocks intended for violent prisoners, less than nine hours a day of physical labor (with exceptions)...(H.R. 169, 1997). Although Finn (1996) argues that "no frills" legislation may make it more difficult to manage prisons and may be self-defeating, he notes that it has served as a model for states to implement their own "no-frills" legislation. Other Federal legislation includes the "100 Percent Truth-in-Sentencing Act" (1997), which reduces all good time credits for prisoners convicted of a violent crime; an Amendment to the "Religious Freedom Restoration Act of 1993," which restricts the Religious freedoms of incarcerated persons; the "Prison Security Enhancement Act" (1997), which would prohibit prisoners from engaging in activities designed to increase their physical strength or fighting ability, as well as prohibit related equipment. Other legislation would require prisoners to pay for health care, eliminate grants and other resources for higher education, restrict filings of habeas corpus petitions, and limit the number of appeals and range of issues in capital convictions. The Prisoner Litigation Reform Act (PLRA) The most severe attack on prisoners' rights was the Federal Prisoner Litigation Reform Act of 1995 (Public Law No. 104-134), a Bill that contained a series of provisions intended to restrict state and federal prisoners' civil rights litigation in federal courts. Supporters of the PLRA argued that prisons were becoming too soft because of repetitive filings of frivolous civil rights complaints. Senator Robert Dole stood before his colleagues to defend the Senate version of the Act and presented an argument that summarized the key concerns of critics of prisoners' rights: Unfortunately, the litigation explosion now plaguing our country does not stop at the prison gate. According to Enterprise Institute scholar Walter Berns, the number of "due-process and cruel and unusual punishment" complaints filed by prisoners has grown astronomically--from 6,600 in 1975 to more than 39,000 in 1994. These suits can involve such grievances as insufficient storage locker space, a defective haircut by a prison barber, the failure of prison officials to invite a prisoner to a pizza party for a departing prison employee, and yes, being served chunky peanut butter instead of the creamy variety. The list goes on and on. These legal claims may sound far-fetched, almost funny, but unfortunately, prisoner litigation does not operate in a vacuum. Frivolous lawsuits filed by prisoners tie up the courts, waste valuable legal resources, and affect the quality of justice enjoyed by law-abiding citizens. The time and money spent defending these cases are clearly time and money better spent prosecuting violent criminals, fighting illegal drugs, or cracking down on consumer fraud. The National Association of Attorneys General estimates that inmate civil rights litigation costs the States more than $81 million each year. Of course, most of these costs are incurred defending lawsuits that have no merit whatsoever. Let me be more specific. According the Arizona Attorney General Grant Woods, a staggering 45 percent of the civil cases filed in Arizona's Federal courts last year were filed by State prisoners. That means that 20,000 prisoners in Arizona filed almost as many cases as Arizona's 3.5 million law-abiding citizens. And most of these prisoner lawsuits were filed free of charge. No court costs. No filing fees. This is outrageous and it must stop (Dole, 1995). Other supporters portrayed litigation as undermining punishment and litigators as bored victimizers of society: Many people think of prison inmates as spending their free time in the weight room or the television lounge. But the most crowded place in today's prisons may be the law library. ............... Today's system seems to encourage prisoners to file with impunity. After all, it's free. And a courtroom is certainly a more hospitable place to spend an afternoon than a prison cell. Prisoners file free lawsuits in response to almost any perceived slight or inconvenience--being served chunky instead of creamy peanut butter, for instance, or being denied the use of a Gameboy video game--a case which prompted a lawsuit in my home State of Arizona. These prisoners are victimizing society twice--first when they commit the crime that put them in prison, and second when they waste our hard-earned tax dollars while cases based on serious grievances languish on the court calendar (Kyl, 1995). Although there is strong evidence discrediting these extreme anecdotes (Burnett, 1998), the Senate was swayed by the rhetoric and the Act passed overwhelmingly. Five particular provisions of the Act impose significant burdens on prisoners. First, prisoners filing in forma pauperis (as poor persons, for whom normal filing fees are waived) are now required to pay the full filing fee of $150 on installments (codified in 28 USC 1915). Second, prisoners whose petitions fail to state a meritorious claim or are judged malicious in three filings are permanently barred from filing further in forma pauperis filings. Third, prisoners risk losing good time if a suit is judged malicious or fails to state an actionable claim. Fourth, with the exception of life-threatening circumstances, prisoners must exhaust all administrative remedies before filing a civil rights complaint in Federal court. Finally, the Act limits judicial intervention into directing or monitoring changes in prison conditions or policies. The PLRA contains several ironies. First, it may actually cost more money to implement than it saves. The administrative costs of collecting fees and tracking prisoners' prior litigation activity may not offset the savings in reduced litigation. More importantly, most prisoners return to the streets within three years of their incarceration. The psychological and social costs of readjustment are not reduced by increasing the punitive burdens of prison, especially if the legal means of challenging excessive burdens are restricted. Second, the PLRA may increase prison violence, thereby reducing the safety of staff and prisoners, by curtailing a mechanism for peaceful dispute resolution. This possibility is based on the view that prisoner ligitation has a "safety valve" function (Thomas, 1988) or possesses "therapeutic value" (Eisenberg, 1993: 440-441). Rather than "reform" litigation, the PLRA may be just another means to appease a fearful public with a "tough on crime" ideology, while doing little to increase prisoners' respect for law, reduce court costs, or reduce the stress of litigation on prison administrators, which are a few problems resulting from prisoner filings. Hence, the PLRA and similar legislation may possess the ultimate ironic effect of not only subverting "rehabilition," but of nurturing debilitation. THE PREMISES OF THE PLRA Two claims are made by supporters of the PLRA and similar legislation that would restrict prisoner litigation (Abraham, 1995; Dauber; 1994 Hatch, 1995). First, the "explosion" in prisoner litigation reflects an increase in prisoners' legal aggressiveness. Second, prisoners file repeatedly, and curtailing repeat filers will dramatically reduce the burden on the courts. Although there is some merit in both claims, neither can be accepted uncritically. The Explosion Myth When Senator Bob Dole raised the spectre of a "plague of litigation" contributed to by prisoners, he was partially correct. The number of prisoner civil rights petitions filed in federal court have increased each year for the past 32 years, as Table 1 shows. (Place Table 1 about here) However, Table 1 also shows that states' prison populations have also grown. The growth in prisoner litigation corresponds closely to the increase in prison population. In fact, the rate of state prisoner civil rights filings peaked in 1981 at 4.69 filings per 100 prisoners and gradually declined and then remained relatively stable into the mid 1990s. The data do not support the "increased aggression" thesis, and suggest that, even prior to the PLRA, prisoners were becoming less aggressive. Further, although the filing rate exceeded 4 filings per 100 prisoners in 1994 and 1995, there is some evidence that this increase is attributable to prisoners attempting to litigate prior to the PLRA taking effect in April, 1996 (Thomas and McArthur, 1999). The decline in both the number and rate of filings from 1995 to 1997 suggests, however, that the PLRA has been initially effective in reducing both the number and rates of prisoner civil rights suits. One-shot Players or Repeat-filers? The "three strikes" provision in the PLRA is based on the permise that prisoners repeatedly file petitions. Eliminate the repeat players, so the logic goes, and prisoner litigation will drop. Table 2 tabulates the number prisoners who filed civil rights petitions in Illinois' Northern Federal District Court between 1977-97. (Place Table 2 about here) While Table 2 provides some support for the view that multiple filers constitute a significant share of the litigation, it also shows that the vast majority of prisoners file three suits or less. About half (49) percent of prison suits are filed by prisoners who file only one suit during their full prison careers, and about 32 percent of all suits are filed by prisoners filing more than three. However, almost 94 percent of litigating prisoners file three or less complaints, and the heavy filers (four or more) constitute only about 6.6 percent of all filers. More simply, while repeat players do, in fact, contribute a disproportionate share of filings, they constitute a relatively small share of filers. Hence, it appears that the three-strikes provision of the PLRA will hurt relatively few prisoners and may, in fact, deter the relatively small percentage of prisoners who abuse the filing process. However, if this is true, then it would appear that the burden of a full filing fee on all prisoners is not necessary, because it discourages those prisoners who file only a few petititions and who are not burdening the courts with unnecessarily repetitive filings. CONCLUSION The significant prison reforms resulting from prisoner litigation in the past 30 years have improved both the conditions and administration of prisons. However, the 1990s mark the decade of retrenchment, as the pendulum of rights continues to swing back toward the judicial "hands-off" doctrine and increased judicial and legislative tolerance for "cruel conditions" and harsh punishment. The Prisoner Litigation Reform Act appears to have been successful in reducing the volume of litigation in the first two years after taking effect. However, it is too early to determine whether reducing the quantity of litigation will have a corresponding reduction on reducing judicial workload or the costs of litigation to taxpayers. If the data from Illinois' Northern Federal District typify other jurisdictions, it may well be that the PLRA, while deterring frivolous suits from overly-litigious prisoners with the three-strikes provision, will also deter meritorious suits from prisoners who cannot afford the full filing fee. Because the "three strikes" are cummulative over possibly successive and prolonged prison stays, the PLRA also penalizes successful and responsible litigants by prohibiting pro se litigation from a prisoner who may file 20 suits and have three rejected as unmeritorious. This aspect of the PLRA hampers jailhouse lawyers who have been most active in generating responsible litigation (Thomas, 1988b). In one final irony, it may be that prisoner litigation in fact serves the same interests as its critics (Milovanovic and Thomas, 1998). Both prisoners and staff have an interest in maintaining effective, efficient, flexible, and stable prison communities (Balbot and Marquart, 1998), and prisoner litigation has been a significant factor in pursuing these communal goals. As a consequence, it might be that prisoner litigation should be encouraged rather than restricted. BIBLIOGRAPHY Abraham, Spencer. 1995. Hearings on "Prisoner Litigation Reform Act." Congressional Record, September 27. Belbot, Barbara A. and James W. Marquart. 1998. "The Political Community Model and Prisoner Litigation: Can We Afford Not to Try a Better Way?" The Prison Journal. 78(September): 299-329. Burnett, Kathleen. 1998. "Frivolous" Claims by the Attorney General." Social Justice, 25(2): 184-204. Dole, Robert. 1995. Hearings on "Prisoner Litigation Reform Act." Congressional Record, September 27. Doumar, Robert G. 1994. "Prisoner Cases: Feeding the Monster in the Judicial Closet." St. Louis University Public Law Review. 14(1): 21-40. Eisenberg, Howard B. 1993. "Rethinking Prisoner Civil Rights Cases and the Provision of Counsel. Southern Illinois University Law Journal, 17(Spring): 417-490. Finn, Peter. 1996. "No-Frills Prisons an Jails: A movement in Flux." Federal Probation. 60(September): 35-44. Hatch, Orrin. 1995. Hearings on "Prisoner Litigation Reform Act." Congressional Record, September 27. Kyl, Jon. 1995. Hearings on "Prisoner Litigation Reform Act." Congressional Record, September 27. Milovanovic, Dragan and Jim Thomas. 1998 (forthcoming). "(Re)Visiting the Jailhouse Lawyer: An Excursion into Constitutive Criminology." S. Henry and D. Milovanovic (eds). New York: SUNY-Albany Press. Palmer, John W. 1996. Constitutional Rights of Prisoners (Fifth Edition). Cincinnati: Anderson. Scalia, John. 1997. Prisoner Petitions in the Federal Courts, 1980-96. Washington, D.C.: Bureau of Justice Statistics, U.S. Department of Justice. Thomas, Jim. 1988a. "Inmate Litigation: Using the Courts or Abusing Them?" Corrections Today, 50(July): 124-127. _______. 1988b. Prisoner Litigation: The Paradox of the Jailhouse Lawyer. Totowa (N.J.): Rowman and Littlefield. Thomas, Jim and Andrew McArthur. 1998. "The Ironies of the Prisoner Litigation Reform Act: Malice in Wonderland?" Graduate Colloquim Series, Northern Illinois University. August 27. ============================== TABLES Table 1: State Prisoner Populations, Civil Rights Filings, and Filing Rates in U.S. Federal District Courts, 1966-1997 __________________________________________________________________ YEAR CIVIL RIGHTS SUITS STATE PRISONER CIVIL RIGHTS FILINGS BY STATE PRISONERS POPULATION PER 100 STATE PRISONERS __________________________________________________________________ 1966 218 180,409 .12 1967 878 175,317 .50 1968 1,072 168,211 .64 1969 1,269 176,384 .72 1970 2,030 176,391 1.15 1971 2,915 177,113 1.65 1972 3,348 174,379 1.92 1973 4,174 181,396 2.30 1974 5,236 196,105 2.67 1975 6,128 216,462 2.83 1976 6,958 235,853 2.95 1977 7,752 267,936 2.89 1978 9,730 277,473 3.51 1979 11,195 287,635 3.89 1980 12,397 295,819 4.19 1981 15,639 333,251 4.69 1982 16,741 375,603 4.46 1983 17,687 394,953 4.48 1984 18,034 417,389 4.32 1985 18,491 451,812 4.09 1986 20,072 486,655 4.12 1987 22,972 520,336 4.41 1988 24,025 562,605 4.27 1989 24,809 629,995 3.94 1990 25,008 684,544 3.65 1991 25,364 728,605 3.48 1992 29,646 778,495 3.81 1993 33,018 828,566 3.98 1994 37,925 904,647 4.19 1995 40,569 989,007 4.10 1996 39,996 1,033,186 3.87 1997 27,661 1,059,588 2.61 ======================== Table 2: Number of suits filed by One-shot and repeat Section 1983 litigants in Illionis' Northern District, 1977-97 Suits # of litigants filing Number of suits filed (and percent of total filings) 1 4,853 4,853 (49.1) 2 606 1,212 (12.3) 3 229 687 (7.0) 4 (or more) 405 3,141 (31.7) ____________________________________________________________________ TOTAL 9,893 6,093 9,893 All multi-filers 1,240 5,040 ======================== Table 3: Number of single-shot and repeat Section 1983 litigants in Illinois' Northern District, 1977-1997. Number of Litigants # of litigants filing who file (and percent of total litigants) ______________________________________ 1 suit 4,853 (79.6) 2 suits 606 (9.9) 3 suits 229 (3.8) 4 or more suits 405 (6.6) ------------------------------------------- Total litigants 6,093