Fighting from Inside
Prison litigation as a conduit for resistance
In April 2018, people incarcerated at Lee Correctional Institution, a maximum-security prison in South Carolina, leaked a gruesome cell phone video to CBS News after a series of fights left seven people dead and at least seventeen others in need of outside medical attention.1 According to an imprisoned witness of the riot, guards refused to intervene as “prisoners’ bodies began stacking up” and did not return for hours, leaving the incarcerated to fend for themselves. One leaked image showed three dead bodies amassed, as if they were “roadkill,” against a prison fence.
At a press conference the prison administration blamed this “mass casualty event” on warring gangs and an influx of “contraband” — namely cell phones — which supposedly allowed imprisoned people to “continue their criminal ways from behind bars.” But, as those imprisoned at Lee contended, it was the prison administration who incited violence. The administration encouraged fights, repressed prisoner-led efforts to de-escalate tension, and stoked racial and cultural divides between prisoners. Cell phones, people imprisoned in the South Carolina Department of Corrections told the independent outlet Shadowproof, were framed as the central problem so that guard neglect and abuse could go unrecorded in the future.
In response to this vulgar display of state-sanctioned violence, Jailhouse Lawyers Speak, a collective of imprisoned people organizing for prisoners’ human rights, called for a national prisoners’ strike. In several states, incarcerated people participated in work stoppages, sit-ins, boycotts, and hunger strikes over a period of nearly three weeks. The strike — and its corresponding list of ten demands for men and women in federal, immigration, and state facilities — received international media coverage, with outlets foregrounding organizers’ calls for improving prison conditions, reinstating federal voting rights, and ending the regime of modern-day slavery that forces imprisoned people to work for minuscule pay. But there was one item on the list that received little attention: the demand for Congress to repeal the Prison Litigation Reform Act, or PLRA.
Little known to those not involved in prisoner-rights work, the PLRA went into effect in 1996 and creates significant hurdles for any incarcerated person who hopes to legally challenge the conditions of their incarceration. In the decades leading up to its enactment, thousands of imprisoned people across the country filed civil rights suits alleging unconstitutional conditions and treatment. Only a small number of these suits made it past motions for dismissal. But these prisoner suits profoundly challenged an emergent but not-yet-settled carceral state. Some prisoners’ petitions resulted in rulings that entire prison systems were unconstitutional. They also led to federal courts assuming management of state prisons and jails, placing limitations on bulging prison populations, ordering the release of prisoners, and even shuttering certain prisons. These suits created substantial complications for state and local legislators and correctional administrators: they shone a public spotlight on the otherwise-obscured brutality present in the nation’s prisons and jails; they forced reforms and placed limits on the unfettered growth of prisoner populations; and they undermined the tough-on-crime ethos required for justifying neoliberal social policies and the upward transfer of wealth. At a moment when popular support for imprisoned people was fading and law-and-order politics was becoming increasingly ubiquitous, prisoners’ legal activism posed a meaningful threat to the growth of the prison nation.
At the same time as imprisoned people were beginning to exercise their legal rights, a looming but not-yet-determinate carceral future was emerging.Tweet
On paper, legislators passed the PLRA to halt what congresspeople erroneously called an epidemic of “meritless” prisoner-initiated lawsuits clogging court dockets. But the law’s effect — crushing imprisoned people’s access to the courts and limiting the federal courts’ power to remedy heinous prison conditions, especially via population control orders — was to severely narrow a key terrain of struggle for imprisoned people fighting not only for relief from abusive treatment and inhumane conditions, but also against the expansion of an intensifying regime of racialized mass imprisonment. The history of prisoner litigation, then, is important both for its insights into shifting trends in civil rights litigation and for making sense of how the contemporary regime of racialized mass incarceration came to be.
For much of American history, the notion that the courts would recognize and sanction judicial review of imprisoned people’s constitutional rights would have seemed far-fetched. Since at least the 19th century, the American court system repeatedly concluded that imprisoned people’s claims had no standing in American courts. In Ruffin v. Commonwealth (1871), the Virginia Supreme Court ruled that prisoners were “civiliter mortuus” — civilly dead — and “slaves of the state” who lacked constitutional rights. This legal codification of prisoners’ dehumanization, along with the federal courts’ general hesitancy to intervene in matters deemed the jurisdiction of the states, justified a judicial tradition often referred to as a “hands-off” approach to prisoner rights. This tradition continued well into the 20th century.
The courts’ hands-off attitude appeared ironclad until the early 1960s, when an organized group of Nation of Islam prisoners launched a series of political and legal challenges against prison administrators. In his history of Muslim prisoner litigation, Those Who Know Don’t Say, the historian Garrett Felber writes that “Black prisoners saw the courts as a breach in the walls, which allowed them to express their claims before the world outside.” Inspired by the innovation of Martin Sostre, a revolutionary organizer and jailhouse lawyer incarcerated in New York state, imprisoned Muslims filed claims based on Section 1983 of the Civil Rights Act of 1871, which allows individuals to sue the government for civil rights violations. Pairing their legal tactics with direct actions such as hunger strikes and taking over solitary confinement units, they sought rulings that would deem religious and other constitutional deprivations civil rights violations, making them eligible for a variety of forms of legal redress and relief.
Imprisoned Muslims faced a wave of losses in lower courts but soon secured a few critical gains. Their efforts came to a head in July 1962, when Thomas X. Cooper, a Black and Muslim man caged at Illinois’s Stateville prison, filed a pro se suit (suits where individuals represent themselves without an attorney) charging that prison officials had unconstitutionally barred him from practicing his religion. Specifically, Cooper alleged they denied him access to a Koran and other religious works while he was placed in highly restricted solitary confinement after participating in ongoing protests and tussles with guards. As with scores of other Muslim prisoner suits, Cooper initially hit a roadblock in the federal courts: the district court denied his petition — a decision upheld by the Seventh Circuit, which cited “Muslim beliefs in black supremacy and their reluctance to yield to any authority” as a “serious threat” to maintaining “order in a crowded prison environment.” But in Cooper v. Pate (1964), the Supreme Court contended that Cooper’s claims deserved a federal court hearing based on their merits, even as they refused to rule on those merits. It was a historic victory. One year later, as the historian Toussaint Losier has detailed, the same district judge who had dismissed Cooper’s suit ruled that Cooper should, in fact, have access to the Koran, religious advisers, and Muslim services. These decisions enshrined the civil rights of imprisoned Muslims and imprisoned people generally across the nation, even as Cooper himself remained incapacitated in solitary confinement; notably the district judge’s ruling refused his release.
Cooper marked the beginning of a new and powerful prisoner-led struggle in the courts. Across the country, incarcerated people filed a flurry of suits against prison overcrowding, guard brutality, poor medical and mental health care, racial discrimination, lack of religious freedom and disability access, faulty or nonexistent grievance systems, and more, forcing the state to confront the racial fascism present in prisons and jails across the country. Between 1970 and 1995, prisoner civil rights filings in federal district courts increased from 2,245 to 39,053, or from approximately six to twenty-five filings per one thousand prisoners. By 1993, prisons in forty states, the District of Columbia, Puerto Rico, and the Virgin Islands had at one point been under some form of comprehensive court order to remedy overcrowding and reform unconstitutional conditions. As the National Conference of State Legislatures wrote in a 1985 report, “It is simpler to name the states that have not had the courts intervene in the operation of their state prison systems” than to name those that had.
At the same time as imprisoned people were beginning to exercise their legal rights, a looming but not-yet-determinate carceral future was emerging. Growing fears about rising crime, the widespread belief in the futility of the rehabilitation of “criminals,” and white racial resentment against Black urban uprisings and the ascent of Black Power movements fueled support for tough-on-crime policies that expanded the carceral state. Beginning in the 1970s, a combination of expanded federal funding for local police, harsh sentencing and parole laws at the state level, and the intensification of a rhetoric that conflated Blackness with criminality produced a spike in incarceration rates. According to data from the Bureau of Justice Statistics, the number of imprisoned people in state and federal correctional facilities increased 720 percent between 1970 and 2010, jumping from just under 200,000 people to over 1.6 million. While Black people in America had always faced disproportionate imprisonment, the number of Black imprisoned people rose sharply and unequally in the late 20th century, with Black people constituting majorities in state and federal prisons despite being a minority population.
Although tough-on-crime politics theoretically assailed the very concept of prisoner rights, the retributive policies central to the law-and-order project also unwittingly created conditions that strengthened prisoners’ claims of unconstitutional confinement. As states militarized police, passed mandatory minimums, eliminated or restricted parole, slowed executive clemency, and endorsed other tough measures, state prisons and local jails — some of which had been built nearly a century earlier — were suddenly filled with unprecedented and unsustainable numbers of imprisoned people. While not a new problem in corrections, prison overcrowding became endemic, making already bad and abusive conditions worse. It became commonplace to hear reports of two and even three incarcerated people crammed into cells “a little larger than a ping pong table,” as was reported at Stateville in 1977. A 1983 New York Times investigation interviewed state prison officials and found that imprisoned people were “sleeping on floors” in eighteen states. By the end of 1986, thirty-two state prison systems and the federal prison system were operating with population levels equal to or more than their highest reported capacity, which is always the most generous accounting of a prison’s available beds. The state’s desire to punish, in other words, dramatically outpaced their actual capacity to do so, providing imprisoned people new grounds on which to file suits against prison officials and state governments.
At the time, Arkansas’s prisons were so overcrowded that ten or more people shared tiny cells with a single toilet, which could only be flushed from outside the cell.Tweet
Prison overcrowding magnified already appalling conditions, prompting imprisoned people to launch new and bolder legal challenges against the burgeoning prison nation. After a 1962 US Supreme Court Case, Robinson v. California, affirmed the applicability of the Eighth Amendment prohibition of cruel and unusual punishment to state governments, incarcerated people, lawyers, and sometimes even federal court judges increasingly sought to apply the Eighth Amendment to the entirety of a correctional facility’s conditions of confinement. The stakes of such a strategy were high: it was one thing for a prisoner to win an individual habeas corpus suit or constitutional protection against a discrete policy or form of mistreatment; it was another to deem the entire operation and administration of a correctional system unconstitutional. Such a decision could heighten public awareness of the structural violence of imprisonment and make it possible to reverse the appalling increase in prisoners that tough-on-crime policies wrought through population reductions, prison closures, and major institutional reforms.
As law-and-order politics ascended nationally, edging out once-mainstream support for prisoners and their resistance movements, prison litigation offered a formidable arena for incarcerated people to counter the seemingly inexorable expansion of racialized state repression. In exposing the unsustainability of carceral strategies, prison-conditions litigation authorized antiprison discourse and tactics and undermined the legitimacy of tough-on-crime politics and carceral institutions. The ability to secure court rulings that affirmed the unconstitutionality of a given state prison system or, as was often the case, to negotiate a settlement requiring the state to make court-mandated reforms, served as a troublesome hurdle for carceral stakeholders wishing to imprison with impunity.
One of the first landmark cases challenging prison conditions began in 1965 in Arkansas; as with elsewhere in the South, the state’s prison system operated through Jim Crow–style racial terror and labor exploitation. A vestige of the Southern plantation, Arkansas’s Cummins Prison used a trusty system, whereby imprisoned people were assigned to guard other imprisoned people, often on the basis of race. Under the supervision of these prisoner-guards, imprisoned people were forced to work in fields for six days per week, often for up to ten hours per day. They lacked proper clothing and food and were subject to brutal whippings at the whim of prisoner-guards. At the time, Arkansas’s prisons were so overcrowded that ten or more people shared tiny cells with a single toilet, which could only be flushed from outside the cell. Media investigations exposed the prison’s frequent use of corporal punishment, including electroshock and forcing incarcerated people to stand for a long time on a teeterboard.
In response to these conditions, jailhouse lawyers — imprisoned people who teach themselves the law and assist fellow prisoners in navigating the legal system — filed several petitions contending that the superintendent of Cummins was violating their constitutional rights. In 1970, Chief Judge J. Smith Henley packaged the petitions into a class-action suit that prompted a review of the entire system. He found that the “totality of conditions” in Arkansas’s prisons were unconstitutional and ordered immediate remedies under the oversight of the federal courts. “For the ordinary convict,” Judge Henley wrote, “a sentence to the Arkansas Penitentiary today amounts to a banishment from civilized society to a dark and evil world completely alien to the free world, a world that is administered by criminals under unwritten rules and customs completely foreign to free world culture.”
In finding the “totality of the conditions” unconstitutional, Henley also implied that the problem was systemic, rather than simply the result of individual bad actors. This not only enabled him to deem a wide array of harms to be Eighth Amendment violations but also gestured further toward the potential for prison-conditions litigation to challenge the overall practice of incarceration.
For the next twelve years, the federal court supervised Arkansas’s prison system and ameliorated some of its most horrific practices. Throughout the course of the litigation, Judge Henley proved extremely active in his oversight, making a point of visiting the state’s prisons, which both generated publicity for the case and signaled his commitment to pursuing remedies to unconstitutional practices. In one of Judge Henley’s most substantive orders, Finney v. Hutto (1976), he offered a meticulous assessment of the Arkansas prison system that highlighted a number of continuing problems the state needed to address to bring the prison into constitutional compliance. Notably, Henley found that the prison system’s sentencing of imprisoned people to indeterminate periods of punitive isolation and administrative segregation, where they were crowded into windowless cells and fed a diet of inedible “grue” — a four-inch square of mashed meat, potatoes, syrup, and other ingredients — was “unreasonable and unconstitutional.”
In 1978, the US Supreme Court not only affirmed Henley’s opinion regarding the prison system’s unconstitutional solitary confinement practices, but made clear that the Eighth Amendment restriction on cruel and unusual punishment applied not only to “physically barbarous” punishments but also to harmful prison conditions. The opinion signaled a monumental declaration of the court’s willingness to understand imprisonment as, if not outright unconstitutional, then at least “subject to scrutiny under Eighth Amendment standards.” It also affirmed Judge Henley’s extensive involvement in matters of prison administration, paving the way for other federal court judges to order and oversee major remedies to unconstitutional prisons and jails.
Even as punitive politics rippled throughout American institutions, imprisoned people’s legal activism coerced the federal courts to open up powerful ground for prisoners and their allies to limit and even reverse the growth of prison and jail populations. To be sure, the courts would never rule a state’s right to imprison someone for committing a crime unconstitutional on its face. But imprisoned people’s vigorous legal challenges made a compelling case that the realities of confinement in the United States rendered imprisonment unconstitutional. Court-mandated remedies could lead not only to serious improvements in correctional administration but also to prison releases or limitations on prison admissions. At just the moment when carceral policy makers were conspiring to make mass racialized criminalization and retributive justice the norm, prisoner-rights litigation launched a powerful assault on the legitimacy and expansion of corrections in the United States.
The most extensive prisoner conditions case of the era developed in Texas, beginning in 1972. While imprisoned in the state’s Eastham prison plantation, David Ruíz filed a handwritten pro se petition in federal court citing medical neglect, overcrowding, and the use of “building tenders,” or prisoner-guards, as evidence of sanctioned brutality by the Texas Department of Corrections. The tender system in particular was so agonizing, he wrote, that it prompted imprisoned people to self-mutilate — a means to express their desperation, protest their torture, and tactically secure their removal from solitary confinement, as Robert T. Chase explains in We Are Not Slaves. Ruíz himself had self-harmed multiple times. His petition catalyzed an interracial, statewide campaign by prisoners who drew on Black Power and Chicano movement analyses to challenge the state’s routine violation of their human rights and mass incarceration more broadly. Using a mix of strategies that included legal testimony, preparing and filing petitions, prisoner work strikes, and letter-writing campaigns, Texas prisoners forced the courts and the broader public to confront the horrors of the Lone Star State’s prisons.
Prison litigation offered a formidable arena for incarcerated people to counter the seemingly inexorable expansion of racialized state repression.Tweet
In December 1980, Judge William Wayne Justice handed down a 249-page “damning indictment” of Texas’s correctional department. “It is impossible for a written opinion to convey the pernicious conditions and the pain and degradation with which ordinary inmates suffer within [the department’s] walls,” Judge Justice wrote in his conclusion.
The gruesome experiences of youthful first offenders forcibly raped; the cruel and justifiable fears of inmates, wondering when they will be called upon to defend [against] the next violent assault; the sheer misery, the discomfort, the wholesale loss of privacy for prisoners housed with one, two, or three others in a forty-five-foot cell or suffocatingly packed together in a crowded dormitory; the physical suffering and wretched psychological stress which must be endured by those sick or injured who cannot obtain adequate medical care; the sense of abject helplessness felt by inmates arbitrarily sent to solitary confinement or administrative segregation without proper opportunity to defend themselves or to argue their causes; the bitter frustration of inmates prevented from petitioning the courts and other governmental authorities for relief from perceived injustices.
Citing the tender system, overcrowding, understaffing, and poor medical and mental health care, the judge ruled the state’s prison system unconstitutional and mandated far-reaching reforms. He even attempted to bar the Department of Corrections from building large prisons and instead significantly shrink its prison system by constructing smaller-scale prisons closer to metropolitan areas. The Fifth Circuit Court of Appeals struck down the order, even as it upheld Judge Justice’s ruling that Texas’s prisons were unconstitutional. But the intent of Ruíz, as Chase writes, was always to “reduce the size of the prison population to stem the growing tide of mass incarceration.”
While many prisoner-initiated civil rights and class-action lawsuits focused on Southern states, where the legacy of slavery and lack of professionalization made state prison systems especially brutal, prison litigation was not geographically confined. In Harris v. Philadelphia, imprisoned people in Philadelphia’s prison system, which was nearly 70 percent Black, filed a pro se class-action suit alleging that overcrowding violated their constitutional rights. In 1986, choosing to settle rather than go to trial, the city agreed to reduce their population to 3,750 or face a court-ordered admissions moratorium that would force them to turn away individuals accused of nonviolent offenses when the prisons exceeded this number. A wave of prisoner petitions in Colorado from the notorious Colorado State Penitentiary culminated in Ramos v. Lamm (1979), in which prisoners and the Colorado ACLU alleged that conditions in the state’s correctional system — including overcrowding, censorship of prisoner mail, and limits on access to counsel and employment — constituted cruel and unusual punishment. Judge John Kane issued a memorandum opinion in 1979 that ordered the prison to be closed entirely.
“The law is a tool of class domination and . . . racial domination,” Mumia Abu-Jamal wrote in Jailhouse Lawyers, “but it can sometimes be wielded against that domination by those who make themselves adept at its use.” The criminal legal system remained an unspeakably violent and racist terrain, responsible for disproportionately Black, brown, and Indigenous prisoners’ incapacitation and civic degradation. But strategic pressure in the courts had the power to break centuries-long judicial precedent, expand constitutional protections for imprisoned people, and prove a nimble vehicle for instituting material limitations on the nation’s transformation into a penal state. Federal court consent decrees, or court-approved agreements brokered between plaintiffs and defendants outlining an enforceable plan for reforms, placed pressure on states to reduce overcrowded populations, fix ghastly health and food services, improve infrastructure, implement due-process procedures, and more.
Particularly notable was the potential of prison-conditions litigation to spur decarceral remedies amid an otherwise rabidly punitive political culture. In the early years of mass incarceration, addressing apparently rising crime through the expansion of correctional systems was not a foregone conclusion. Even as fearmongering around crime and rising prison populations stoked calls for tougher punishment, state legislatures and the public were not immediately eager to spend public funds on more prisons. Imprisoned people, prison reformers, correctional administrators, and legislators alike frequently argued that states could not build their way out of the crisis. Prison-conditions litigation, and the pressure from federal courts to remedy overcrowded and inhumane prison conditions, enabled experiments with prisoner-release and early-parole policies and with prison population caps, all of which helped to remove people from correctional institutions or prevent them from entering them in the first place. Advocates anticipated that such litigation might also discourage the building of more prisons and prompt decarceration due to the high costs of judicial review and of new prison construction.
It is unsurprising, then, that prisoner suits posed serious problems to state legislators, correctional administrators, and law enforcement officials invested in tough justice. Allowing these lawsuits to proliferate and continue to gain favorable rulings in federal court endangered the profitable myth that prisons and jails were lawful or rehabilitative institutions needed to protect society from dangerous criminals. Relatively easy access to the courts provided imprisoned people a stage to publicize their grievances and a wider audience to hear them. Their lawsuits opened tightly guarded prisons and jails to public and political scrutiny, ensuring a regular stream of outside judicial observers and other visitors. They also tangled up state resources, forcing the state to constantly invest time and money in both defending their constitutionally dubious practices and in adjusting correctional systems to meet constitutional standards. So long as the federal courts had the power to order expansive remedies, especially orders related to limiting or reducing prison populations, the legitimacy of law-and-order politics would contain frail edges for prisoners and their allies to productively exploit.
Despite its earlier facilitation of prisoner-rights litigation, the Supreme Court struck the first blow against the potential for imprisoned plaintiffs to win civil rights suits. In Bell v. Wolfish (1979), the nine justices overturned a lower-court ruling that a federal jail in New York City had violated prisoners’ constitutional rights by doubling up on cell capacity; they also reprimanded federal courts for becoming “increasingly enmeshed in the minutiae of prison operations.” This struck a heavy blow by effectively legalizing prison overcrowding, which had previously served as compelling evidence of unconstitutional prison conditions. In Rhodes v. Chapman (1981), the high court similarly overturned a ruling that “double celling” of sentenced prisoners constituted cruel and unusual punishment. In doing so, the court limited the application of the Eighth Amendment in prison-conditions cases, specifically regarding the constitutionality of prison overcrowding, and reallocated power to prison administrators, once again curtailing prisoners’ constitutional rights. As Justice Lewis Powell, a Nixon appointee raised under segregation in Virginia, wrote in the majority opinion, “The Constitution does not mandate comfortable prisons.”
These and other doctrinal changes forged by the Supreme Court did not entirely eliminate the flow of prisoner-rights cases, nor did they dissuade federal courts from engaging in wide-scale institutional reform. District Judge Norma Shapiro, for example, oversaw court-mandated prison population controls in Philadelphia’s prison system well into the 1990s, provoking ire from punitive local and law enforcement officials who smeared the court’s intervention as undermining the city’s efforts to get tough on crime. In 1994, the Philadelphia councilwoman Joan Krajewski called the court-ordered releases of imprisoned people an “outrage” and demanded that Judge Shapiro resign, but was ultimately powerless over the judge’s decisions. “I don’t know if it takes an act of Congress, an act of the president’s office or what, but this woman is definitely doing a disservice to the citizens of the community,” Krajewski proclaimed. Her words echoed a common racialized trope that court oversight of prisons and jails, and specifically the mandates that the city reduce its prison population, threatened public safety by releasing supposedly dangerous criminals back onto the streets.
It would, in fact, take an act of Congress. With prisoner-initiated civil rights suits continuing to proliferate, the state attorneys general and district attorneys who found prison litigation antithetical to cracking down on crime launched an all-out legislative attack. Both the National Association of Attorneys General (NAAG) and the National District Attorneys Association (NDAA) drummed up panic around a so-called crisis of prison litigation and federal court intervention. “The almost continual intervention and interference by federal courts in prison litigation has had an adverse effect on our ability to protect our communities,” the NDAA wrote in a 1995 letter to Republican Senator Orrin Hatch, who was then chairman of the Senate Committee on the Judiciary. “Court orders stemming from the unwarranted intrusion by federal judges,” the letter continued, “has resulted in the release of dangerous criminals back to our city streets; has resulted in the squandering of scarce resources to meet the whims of self-designated monitors; and has usurped the authority and responsibilities of locally elected officials.” The NAAG focused their disdain more on “frivolous” prisoner suits, which they claimed cost them $54.5 million annually. In 1995, Florida’s assistant attorney general, Cecilia Bradley, stated that prisoners filed suits simply “to amuse themselves” or “for the pure expense it costs the state.” Attorneys general from states as dissimilar as Arizona and New Jersey repeated these talking points in the press, alleging such suits cost taxpayers millions.
Both the NDAA and NAAG worked with members of Congress to author bills that would eventually get consolidated into the Prison Litigation Reform Act. In September 1995, the Republican Senator Spencer Abraham introduced combined legislation that sought to bar imprisoned people from filing suits, restrict federal court judges’ ability to order remedies in prison-conditions cases, and empower states and correctional administrations to terminate unwanted federal court oversight of prisons and jails. Frivolous prisoner lawsuits, he argued, “[tied] up enormous resources” and led to “murderous early releases,” all the while overindulging prisoners who “should not have all the rights and privileges the rest of us enjoy.” His legislation sought to “return sanity and state control to our prison systems.”
The barriers mounted by the PLRA were vast and specific, ensuring maximum enfeeblement of the once-dynamic realm of prisoner litigation.Tweet
Claims that prisoner litigation disproportionately clogged court dockets with frivolous suits were entirely fabricated, reliant upon what the legal scholar Margo Schlanger called in a Harvard Law Review article “stylized anecdotes and gerrymandered statistics.” As evidence of meritless prisoner claims, pro-PLRA politicians frequently referred to Kenneth Parker, whose suit allegedly concerned the texture of some peanut butter he had purchased from the prison canteen. Parker had sued, they said, because he had received a jar of creamy peanut butter rather than the chunky he had requested. But Parker actually filed the suit because the prison failed to remove the $2.50 charge from his account after he had returned the jar. Parker was not the victim of an imperfect meal; he was the victim of theft. Despite the inaccurate rendering of the case, the example got picked up by the media and spread far and wide, contributing to coverage that, along with testimonies from state attorneys general and district attorneys hostile to prisoner litigation, gave the impression that all prisoner suits were vain, burdensome, and wasteful.
Similarly unfounded were claims that the oversight of prisons and jails by federal judges constituted “judicial overreaching” and led to an inundation of dangerous criminals on the streets. Supporters of the PLRA, for instance, cited spurious assertions that Philadelphia’s court-enforced population controls fueled violent murders in the city. But violent crime had actually declined in Philadelphia after the population limitations took effect. Among those who were released, rearrest rates mirrored those of individuals diverted from prison under the city’s diversionary programs. Court reports suggest that 54 percent were not even convicted of the crimes for which they were initially imprisoned.
Some Democratic legislators raised concerns about the proposed legislation. Senator Ed Kennedy warned the PLRA would “strip the Federal courts of the ability to safeguard the civil rights of powerless and disadvantaged groups.” But the manufactured concerns about trivial suits and federal overreach had generated too much momentum, ushering the PLRA through both houses of Congress. On April 26, 1996, President Clinton signed the PLRA into law. With the stroke of a pen, the golden era of prisoner-rights litigation, already beginning to lose its luster, was perilously weakened.
Even at the time, imprisoned people and their supporters understood the devastating impact the PLRA would likely have on prisoner rights. As Prison Legal News wrote shortly after its passage,
As we come up on the 25th anniversary of the Attica uprising this September prisoners find themselves in essentially the same situation they did then: without adequate recourse to the courts or other forums in which to seek justice and equitable relief. It was the Attica uprising, with its attendant 43 deaths, that marked a turning point in the courts’ until then, largely “hands off” attitude towards the constitutional rights of prisoners. To the extent that history repeats itself first as tragedy then as farce, Congress appears to have forgotten why the courts got involved in prison conditions to begin with.
The barriers mounted by the PLRA were vast and specific, ensuring maximum enfeeblement of the once-dynamic realm of prisoner litigation.
First, the PLRA erected innumerable obstacles for imprisoned people seeking to bring forward and settle or win lawsuits regarding the conditions of their confinement. Specifically, to receive a monetary award, the PLRA placed the burden on prisoners to prove that they experienced “physical injury,” discounting nonphysical forms of harm. An imprisoned person placed in long-term solitary confinement who only experienced extensive emotional and psychological distress could be deemed not entitled to monetary damages. The PLRA’s new “exhaustion” requirement also forced the small class of people who could seek damages — those who had been physically harmed — to prove that they had tried all administrative remedies within their correctional institution before filing a federal court suit. If they made one mistake navigating their institution’s convoluted prison grievance system, their case was dismissed. If they had three cases dismissed due to being “frivolous, malicious, or fail[ing] to state a claim upon which relief can be granted,” they were required to pay their filing fee up front, rather than in more manageable installments. The filing fee is $350, an enormous sum for most incarcerated people. For the small few who made it over these hurdles, the PLRA then made it difficult to find a lawyer by decreasing the fees that attorneys could earn from prisoner-rights cases. And if all this was accomplished, and they found a lawyer, they still had only made it to court; there was no guarantee they would win.
Once in court, imprisoned people would find that the PLRA also severely limited a judge’s ability to order relief and uphold consent decrees. Most damningly, the PLRA empowered defendants (normally state officials and/or corrections officials) to move to terminate court-ordered remedies immediately if they were not “narrowly drawn.” They could also move to end mandated relief just two years after a judge ordered it, undermining the courts’ power to mitigate conditions long-term. As if this was not enough to disable the courts, the PLRA included even more specific restrictions on the courts’ ability to impose “prisoner release orders”: orders requiring a criminal punishment system to release prisoners, usually to remedy prison overcrowding. In short, the PLRA not only broadly limited federal judges’ ability to order remedies; it also constrained the ability of the federal courts to decarcerate.
At a time when legislators on both sides of the aisle were doubling down on tough sentencing, ballooning prison populations to new and horrific heights, the PLRA’s damage was extensive. Between 1995 and 2012, filings by imprisoned people took a nosedive, dropping 59 percent even as the number of imprisoned people in the nation increased by 135 percent. Numerous state and correctional defendants also terminated consent decrees that governed prison conditions. As Peter Sierra recently wrote while imprisoned at the California Correctional Institution, the PLRA requires “inmates to all but jump through a hoop engulfed in flames to file a [Section] 1983 civil lawsuit or a writ of habeas corpus to protest staff misconduct or prison conditions.” It’s little wonder that fewer imprisoned people are able and willing to take that leap.
To be sure, prison litigation has not entirely disappeared in the post-PLRA climate. In 2011, the Supreme Court ruled in Brown v. Plata that California’s panel of three district judges was correct in ordering the state to reduce prison overcrowding by the end of 2013. At the time of the ruling, California’s prison system was well over capacity; the system was built to house around eighty thousand people but held nearly double that number. Overcrowding exacerbated already inhumane systems of mental and physical health care in the prisons. In his majority opinion, Justice Kennedy quoted expert testimony from a former prison system medical director who found “extremely high” rates of “possibly preventable or preventable deaths” — between 2006 and 2007, a “possibly preventable death” occurred once every five to six days — and appeared to offer a firm rebuke to decades of antiprisoner legal decision-making and policy making. “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society,” he wrote. But Brown v. Plata is the exception that proves the rule: the order by the three judges to reduce the prison population was the first since the PLRA’s passage, in 1996. On the whole, the PLRA’s ruthless hamstringing of prisoner rights and federal court oversight of prisons and jails perilously weakened once-valuable tools for slowing the growth of the prison nation.
Even in cases where judges handed down firm rulings regarding the unconstitutionality of prison conditions, the ultimate effects of prison-conditions litigation were always mixed. As is clear from the steady expansion of prison populations and new prisons in the late 20th century, judicial intervention ultimately failed to stop racialized mass imprisonment. Because federal courts had no jurisdiction over other arms of the criminal punishment system — such as the criminal courts, the legislature, or probation and parole boards — it was difficult for judges to order and lawyers to push for front-end measures that arguably would have been more radical and effective, such as reducing policing or abolishing mandatory sentencing. More problematic was the fact that court orders to remedy unconstitutional and overcrowded prison conditions were, in the end, just orders, and securing compliance from intransigent policy makers proved difficult. After a ruling or settlement was reached, imprisoned people were often reduced to little more than disempowered spectators, while judges, special masters, and lawyers made compromises that dictated the enforcement of court orders — and imprisoned people’s fate. Population reduction orders often applied only to “nonviolent” prisoners and did not always mean unmitigated release; states could merely transfer prisoners to jails or place people on intensive and often just as criminalizing parole. Further, by codifying a set of standards considered “constitutional,” prison litigation and federal court interventions normalized what Schlanger has called “lawful prisons,” creating the false impression that prisons and jails can ever be ethical institutions and legitimizing legislators’ continued pursuit of harsh sentencing and parole policies.
In another cruel twist, many prison officials welcomed prison-conditions litigation because it could just as easily push state legislators to augment correctional budgets and construct new prisons, rather than result in their dismantling. Correctional administrations and prison guards profited handsomely from being able to use the threat of litigation to force bigger budgets, justify tighter security over prisoners, and hire additional personnel. Many of the correctional systems that underwent wide-scale institutional reform simply mutated into more modern, technically constitutional forms of administrative violence, replete with heightened surveillance, extreme racialized repression, and supermax cells.
Even modestly decarceral reforms in the face of overcrowding crises faced a torrent of law-and-order backlash, often with the aid of sensationalized, cherry-picked, and racist media coverage of crimes committed by individuals freed by release mechanisms. In her study of Costello v. Wainwright (1975), in which incarcerated people in Florida challenged overcrowded conditions, the sociologist Heather Schoenfeld details how state policy makers eventually translated a court order to mitigate overcrowding into a directive to build more prisons after conservative politicians and victims’ rights groups accused the state’s early release program of endangering public safety. Similarly, in Philadelphia, the Philadelphia Daily News openly collaborated with the district attorney’s office to pillory the prison population controls ordered by Judge Shapiro, creating a spurious narrative that the Harris releases fueled violent crime in the city. The pressure eventually led Judge Shapiro to eliminate the court-ordered population controls while the city moved ahead with building more prisons. In the end, carceral institutions emerged from the golden age of prison litigation more powerful, well-resourced, and organized than before. From this perspective, the realm of prison-conditions litigation may seem ultimately inconsequential, if not harmful to the project of decarceration.
But the sobering aftermath of prison-conditions litigation should not minimize the importance of upholding imprisoned people’s access to the courts. During a period when the expansion of the prison system appeared inevitable, prison litigation created opportunities for imprisoned people and their allies to make the horrors of the United States’ carceral future legible. They also pushed judges and government officials to not only end some of the most torturous penal practices but also to impose limits on prison populations, demonstrating that decarceration was possible and that mass imprisonment was not, in fact, the only way to deploy state resources in response to harm. That their efforts were frequently usurped by carceral legislators and prisoncrats does not prove that these openings could not have been exploited by stronger, prisoner-led social movements to demand more decarceral solutions.
When Jailhouse Lawyers Speak made repealing the PLRA the third demand of their 2018 prison strike, they did so because imprisoned people’s freedom to file civil suits in federal court offered a critical venue for contesting and occasionally remedying a litany of abuses fundamental to imprisonment. The tactic also offered an elevated platform for publicizing the gruesome, anti-Black, and constitutionally specious realities inside the US penal system — which more than a few imprisoned people have argued are tantamount to that of a concentration camp — and for finding ways to channel state power in the service of destroying this pernicious institution. While the 2018 prison strike mobilized thousands of prisoners and broke into the mainstream, receiving coverage in outlets such as Vox and the New York Times, their demands remain unmet. But the call to repeal the PLRA has not gone entirely unnoticed. Democratic Congresswoman Ayanna Pressley’s People’s Justice Guarantee, which she introduced in 2019 and reintroduced in 2021, includes a provision that would repeal the PLRA.
Prison litigation alone was never, nor will it ever be, abolition. Even the most well-intended prisoner suits remain susceptible to cooptation or destruction by powerful carceral institutions and a host of punitive individuals and organizations invested in protecting them. As imprisoned Muslims knew back in the 1960s, litigation is not so much a silver bullet but a tactic to be pursued alongside mass political organizing and disruption, mutual aid, and principled anticapitalist and antiracist struggle. Should the PLRA be abolished, prison litigation can once again be used, as the executive director of the Abolitionist Law Center Robert Saleem Holbrook recently wrote, as a “conduit for resistance . . . a tool to aid in [oppressed peoples’] liberation.” The history of prison litigation suggests that for such suits to achieve meaningfully decarceral ends, abolitionists must pair legal action with mass community mobilizations to pressure judges and lawmakers to enact decarceral remedies and to shut down the inevitable tough-on-crime backlash that will follow. Such efforts must also include organizing across bars, rather than the lawyer-led processes of suits past — imprisoned and criminalized people hold essential insight into whether court-ordered reforms are truly decarceral and whether or not policy makers are actually enforcing them, since they feel its relief. Repealing the PLRA would move us toward an abolitionist horizon by striking against the vicious, dehumanizing logic at the heart of the carceral state: that the nation’s colossal carceral apparatus is the only thinkable response to harm, and that imprisoned people are undeserving of rights and care and should be routinely subjected to premature death.
This article is indebted to a growing and interdisciplinary scholarship on prisoner resistance, prisoner litigation, and US carceral state history, especially works by Mumia Abu-Jamal, Dan Berger, Robert Chase, Justin Driver, Garrett Felber, Malcolm Feeley, Emma Kaufman, Anne K. Heidel, Toussaint Losier, Mona Lynch, Melanie Newport, Judith Resnik, Edward Rubin, Margo Schlanger, Heather Schoenfeld, Giovanna Shay, Martin Sostre, and Susan Sturm. ↩