Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders

Lawyers obtained the first federal court orders governing prison and jail conditions in the 1960s. This and other types of civil rights injunctive practice flourished in the 1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article\u27s longitudinal account of jail and prison court-order litigation establishes that, to the contrary, correctional court-order litigation did not decline in the late 1980s and early 1990s. Rather, there was essential continuity from the early 1980s until1996, when enactment of the Prison Litigation Reform Act (PLRA) reduced both the stock of old court orders and the flow of new court orders. Even today, ten years after passage of the PLRA, the civil rights injunction is more alive in the prison and jail setting than the conventional wisdom recognizes. Yet while the volume of court-order litigation had, prior to 1996, remained stable, the nature of court-order practice changed from a kitchen sink model to something much more precise. Where in the 1970s litigation tended to be broad in scope, with loose standards of causation and sweeping remedies, through the 1980s and 1990s litigation grew ever more resource-intensive, and addressed increasingly narrow topics with more rigorous proof and causation requirements. This Article argues that this change was caused not only by the increasing conservativism of the federal bench, but more interestingly by a generalized skepticism about issues of causation in law, the increased presence of large pro bono firms accustomed to a resource-intensive mode of litigation, and the salience of several extraordinarily extensive litigations as models

Regulating Segregation: The Contribution of the ABA Criminal Justice Standards on the Treatment of Prisoners

Over recent decades, solitary confinement for prisoners has increased in prevalence and in salience. Whether given the label disciplinary segregation, administrative segregation, special housing, seg, the hole, supermax, or any of a dozen or more names, the conditions of solitary confinement share basic features: twenty-three hours per day or more spent alone in a cell, with little to do and no one to talk to, and one hour per day or less in a different, but no less isolated, setting-an exercise cage or a space with a shower. Long-term segregation units operated along these lines are extraordinarily expensive to build and operate. Too many prisoners are housed in them for too long, in conditions whose harshness stems more from criminal-justice politics than from correctional necessity or even usefulness. Prisoners in long-term segregation units often experience extreme suffering, and those who have serious mental illness frequently decompensate and become floridly psychotic. As one judge has explained, [f]or these inmates, placing them in the SHU [Security Housing Unit] is the mental equivalent of putting an asthmatic in a place with little air to breathe. \u27 Some prisoners who enter long-term segregation in a relatively psychologically healthy state experience mental-health damage as well. Such conditions are inconsistent with the human dignity of prisoners and are frequently counterproductive. It is for this reason that the American Bar Association\u27s (ABA) Criminal Justice Standards on the Treatment of Prisoners propose several important reforms in this area of criminal justice policy. From 2007 to 2009, I had the privilege of serving as the Reporter for the Task Force that produced these Standards, which the ABA has now adopted and which are reprinted in this issue of the American Criminal Law Review. Like all of the ABA\u27s Criminal Justice Standards, these are offered by the ABA as a source of insight and authority for judges, legislators, and government officials who are aiming to rationalize and improve the criminal justice system.2 In this Article, I discuss both how and why the ABA Standards deal with the crucial issue of the use of segregation. To summarize, in order to comply with the Standards, jails and prisons must: * Provide sufficient process prior to placing or retaining a prisoner in segregation to be sure that segregation is warranted. (ABA Treatment of Prisoners Standard 23-2.9 [hereinafter cited by number only]3) * Limit the permissible reasons for segregation. Disciplinary segregation should generally be brief and should rarely exceed one year. Longer-term segregation should be imposed only if the prisoner poses a continuing and serious threat. Segregation for protective reasons should take place in the least restrictive setting possible. (23-2.6, 23-5.5) * Decrease isolation within segregated settings. Even prisoners who cannot mix with other prisoners should be allowed in-cell programming, supervised (and physically isolated) out-of-cell exercise time, face-to-face interaction with staff, access to television or radio, phone calls, correspondence, and reading material. (23-3.7, 23-3.8) * Decrease sensory deprivation within segregated settings. Jails and.prisons must limit the use of auditory isolation, deprivation of light and reasonable darkness, punitive diets, etc. (23-3.7, 23-3.8) * Allow prisoners to gradually gain more privileges and be subjected to fewer restrictions, even if they continue to require physical separation. (23-2.9) * Refrain from placing prisoners with serious mental illness in what is an anti-therapeutic environment. Jails and prisons must instead maintain appropriate secure mental-health housing for such prisoners. (23-2.8, 23-6.11) * Carefully monitor prisoners in segregation for mental-health deterioration and deal with deterioration appropriately if it occurs. (23-6.11) The ABA is far from the first organization to offer proposals to reform solitary confinement.4 The Standards\u27 unique contribution, however, is to address all the aspects of long-term segregation by presenting solutions that embody a consensus view of representatives of all segments of the criminal justice system who worked on them together in the exhaustive and collaborative ABA Standards process. 5 Part I of this Article provides information on the Standards more generally. Part II discusses the history of segregated housing and general observations about its effects. Part III discusses the approach taken by the ABA Standards with respect to permitted rationales for the use of segregated housing. Part IV describes the Standards\u27 procedural requirements for placing prisoners in long-term segregation. Finally, Part V focuses on those Standards that are intended to mitigate the effects of isolating conditions. This Article is part of a paper Symposium on the Standards; it is joined by an essay by ACLU National Prison Project Director David Fathi focusing on prisoners\u27 access to courts and other oversight bodies, and another on immigration detention by New York City Department of Corrections Commissioner Dora Schriro

Prison and Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021

These tables relating to prison and jail civil rights litigation in federal court update prior-published versions, using data available as of April 6, 2022.The Tables show longitudinal statistics about case filings, features, and outcomes, for jail/prison civil rights and conditions cases and for the entire federal civil docket, grouped by case category.List of tables:Table A: Incarcerated Population and Prison/Jail Civil Rights Filings, FY1970–FY2021Table B: Pro Se Litigation in U.S. District Courts by Case Type, Cases Terminated Fiscal Years 1996–2021Table C: Outcomes in Prisoner Civil Rights Cases in Federal District Court, Fiscal Years 1988–2021Table D: Outcomes in Federal District Court Cases by Case Type, Fiscal Year 2021Table E: Prisoner Civil Rights Litigated Victories, FY 2012Table F: Incidence of Court Orders, Local Jails and State Prisons, 1983–2006, 2019Table G: Change in Prisoner Civil Rights Filings in U.S. District Court and Filing Rates, by State, Fiscal Years 1995 vs. 2012, 2012 vs. 2019, and 1995 vs. 2019Table H: Days to Disposition, District Court Cases by Fiscal Year of Filing, 1988–2021This updated the version posted April 27, 2021 (which remains available at ttps://ssrn.com/abstract=3834658) and Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5 U.C. IRVINE L. REV. 153 (2015). (Table E is the same as in those prior sources)Replication code and resulting datasets are posted at http://incarcerationlaw.com/documents/Data-Update-Data-and-Replication-Code/DataUpdate

Gender Matters: Teaching a Reasonable Woman Standard in Personal Injury Law

Reasonable care is, of course, a concept central to any torts class. But what is it? One very standard doctrinal move is to conceptualize reasonable care as that care shown by a reasonable person under like circumstances. The next step, logically, is to visualize this reasonable person. Visualization requires some important choices. For example, is the reasonable person old or young? Disabled or not? These are two questions that all the casebooks I have consulted discuss. But, oddly, no casebook of which I am aware deals with the trait that nearly invariably figures in our description of people: sex. If the casebooks are silent, however, the cases and commentary are not Judicial opinions frequently used to refer to the reasonable man rather than the reasonable person. As stated in the earliest, and one of the most frequently quoted, such articulation, [n]egligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. In a famous passage, in 1933, Lord Judge Greer described as well as named the reasonable man in explicitly masculine phrases; he was \u27the man who takes the magazines at home and in the evening pushes the lawn mower in his shirt sleeves. \u27 Feminism has not let the masculine origin of the reasonable person go unremarked. Feminist scholars have argued that tort law used to evaluate care against a standard that was not just linguistically but substantively masculine-that the reasonable man is the mascot of tort law\u27s oppression and exclusion of women. The unremedied effects, some have argued, continue in place. For example, Leslie Bender writes: It was originally believed that the reasonable man standard was gender neutral. Man was used in the generic sense to mean person or human being. But man is not generic except to other men.... As our social sensitivity to sexism developed, our legal institutions did the gentlemanly thing and substituted the neutral word person for man. . . . Although tort law protected itself from allegations of sexism, it did not change its content and character

Prisoners’ Rights Lawyers’ Strategies for Preserving the Role of the Courts

This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet 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. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to play a role. Part III 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 IV examines plaintiffs’ coping methods for the PLRA’s provisions that ease the path to termination of decrees, whether litigated or by 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 below can help counsel and judges in prisoners’ rights cases thread the needle that the PLRA presents. More theoretically, the examples demonstrate that litigation tactics and procedures are dynamic—that rule changes affect the parties’ bargaining positions but rarely eliminate bargaining altogether

Beyond the Hero Judge: Institutional Reform Litigation as Litigation

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of compliance. A new kind of case (termed, variously, “public law litigation,” “structural reform litigation,” or “institutional reform litigation”) developed as civil rights plaintiffs and their lawyers began to seek and obtain litigated reform and continuing injunctive relief not only against schools, but also against prisons, jails, mental health and mental retardation facilities, and many other types of institutions. Law professors, law students, and political scientists followed a few years behind with descriptions, discussions of origins, efforts at legitimation, critiques, and case studies. Professors Abram Chayes and Owen Fiss set the terms of the scholarly debate; both described and defended civil rights injunctive cases in opposition to Lon Fuller’s vision of private dispute resolution by adversarial litigation, and both took as their central concern the role of the judge. The many siblings of Chayes’s and Fiss’s work, and its numerous progeny, have, with some exceptions, shared these two features. Malcolm Feeley and Edward Rubin’s history and analysis of prison reform litigation, Judicial Policy Making and the Modern State: How the Courts Reformed America’s Prisons, is a work in this tradition. Like other scholars since the 1970s concerned with structural reform cases, Feeley and Rubin aim to rebut Fuller by “rethink[ing] the forms and limits of adjudication” (p. 3). And like other scholars since the 1970s, Feeley and Rubin pay most attention to judges, although they narrow the focus even further, to judges’ creation of legal doctrine (albeit broadly defined)

Against Secret Regulation: Why and How We Should End the Practical Obscurity of Injunctions and Consent Decrees (Symposium: Rising Stars: A New Generation of Scholars Looks at Civil Justice)

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, instructing the covered entities not only what they may not do, but also what they must do and how they must do it. Moreover, the reach of injunctions can extend well past their explicit scope because injunctive orders can serve as models for broader regulation or legislation and can set the boundaries of a regulatory agency\u27s enforcement efforts. But as this Article develops, notwithstanding the individual and collective importance of all these injunctions, they languish in practical obscurity, unavailable to all but the extraordinarily persevering researcher who joins inside information with abundant funds. For this Clifford Symposium on civil justice, I describe the problem, argue that the situation is unacceptable in the modern information era, and propose a solution