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How Prisoners' Rights Lawyers are Preserving the Role of the Courts Margo Schlanger 2014

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How Prisoners’ Rights Lawyers Are Preserving the Role of the Courts
by Margo Schlanger
DRAFT: August 11, 2014

This article 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.

How Prisoners’ Rights Lawyers Are Preserving the Role of the Courts
by Margo Schlanger*
Draft, June 30, 2014
INTRODUCTION
In 1996, Congress imposed draconian restrictions on the litigated remediation of
unconstitutional conditions of confinement in jails and prisons. The Prison Litigation Reform
Act (“PLRA”), 1 a statute enacting part of the Newt Gingrich “Contract with America,” 2 made it
harder for prisoners to bring, settle, and win lawsuits. 3 The PLRA conditioned court access on
prisoners’ meticulously correct prior use of onerous and error-inviting prison grievance
procedures. 4 It increased filing fees, 5 decreased attorneys’ fees, 6 and limited damages. 7 It

© Margo Schlanger 2014. The article may be copied and distributed for free or at cost to
students or prisoners.
*

Professor of Law, University of Michigan. Thanks to Grady Bridges and Kevin Kapalla for
data management assistance. And thanks to the participants in the University of Miami “Leading
from Below” Symposium for their feedback on the presentation that preceded this article. Like
that Symposium, this article is dedicated to Judge Jack Weinstein, who needs less help from
lawyers than anyone has any right to expect.
1

Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321, 1321-66 to -77 (Apr. 26, 1996) (codified
at 11 U.S.C. § 523; 18 U.S.C. §§ 3624, 3626; 28 U.S.C. §§ 1346, 1915, 1915A; 42 U.S.C.
§§ 1997–1997h). The PLRA was part of the Omnibus Consolidated Rescissions and
Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321.
2

CONTRACT WITH AMERICA: THE BOLD PLAN BY REPRESENTATIVE NEWT GINGRICH,
REPRESENTATIVE DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION
53 (Ed Gillespie & Bob Schellhas eds., 1994).
3

For in-depth examination of the PLRA’s impact on damage actions, see Margo Schlanger,
Inmate Litigation, 116 HARV. L. REV. 1555 (2003) [hereinafter Schlanger, Inmate Litigation].
For in-depth examination of the PLRA’s impact on injunctive litigation, see Margo Schlanger,
Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L.
REV. 550 (2006) [hereinafter Schlanger, Civil Rights Injunctions].
4

42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are exhausted.”).
See Woodford v. Ngo, 548 U.S. 81 (2006). A good deal has been written about this provision.
See, e.g., Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America’s Jails and
Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. PA. J. CONST. L. 139
(2008); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The
Consequence of Procedural Error, 52 EMORY L.J. 1771 (2003); Alison M. Mikkor, Correcting
for Bias and Blind Spots in PLRA Exhaustion Law, 21 GEO. MASON L. REV. 573 (2014); Eugene

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subjected injunctive settlements to the scope limitations usually applicable only to litigated
injunctions. 8 It made population caps—previously common—far more difficult to obtain. 9 And
it put in place a rule inviting frequent relitigation of injunctive remedies, whether settled or
litigated. 10
All of this together has had a very drastic effect on jail and prison litigation. Filings took
an immediate dive in 1996, and have decreased steadily in the years since. 11 And court orders
governing jail and prison conditions have grown much rarer. 12 Yet district judges continue to

Novikov, Comment, Stacking the Deck: Futility and the Exhaustion Provision of the Prison
Litigation Reform Act, 156 U. PA. L. REV. 817 (2008); Giovanna Shay, Exhausted, 24
FED.SENT.R. 287 (2012).
5

28 U.S.C. § 1915(b) (excluding prisoners from the ordinary in forma pauperis ability to file
without payment of fees). See 28 U.S.C. § 1914(a) (setting the fee for a district court civil action
at $350).
6

42 U.S.C. § 1997e(d)(2)(A)(3) (capping defendants’ liability for attorneys’ fees in civil
rights cases at 150% of the rate paid publically-appointed defense counsel). In addition, the
PLRA has been read to further cap defendants’ liability for attorneys’ fees in monetary civil
rights cases at 150% of the judgment. 42 U.S.C. § 1997e(d)(2)(A)(2); see, e.g., Robbins v.
Chronister, 435 F.3d 1238 (10th Cir. 2006) (en banc) (reversing district court and disagreeing
with appellate panel, holding that this limitation applies even fees awarded even for a lawsuit
involving a pre-incarceration claim). At least one court has held, however, that the statutory text
does not support this latter limitation. Harris v. Ricci, No. 08-cv-06282-DRD, 2014 WL
1274085 (D.N.J. Mar. 28, 2014).
7

42 U.S.C. § 1997e(e) (“No Federal civil action may be brought by a prisoner confined in a
jail, prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury or the commission of a sexual act.”). See, e.g.,
Hilary Detmold, Note, ‘Tis Enough, ‘Twill Serve: Defining Physical Injury under the Prison
Litigation Reform Act, 46 SUFFOLK U. L. REV. 1111 (2013).
8

18 U.S.C. § 3626(a)(1)(A) (“Prospective relief in any civil action with respect to prison
conditions shall extend no further than necessary to correct the violation of the Federal right of a
particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless
the court finds that such relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the violation
of the Federal right.”). See infra Part II.A.
9

18 U.S.C. § 3626(a)(3) (setting out procedural and substantive hurdles to obtaining a
“prisoner release order”); see also Plata v. Brown, 131 S.Ct. 1910 (2011) (affirming imposition
of such an order in California).
10

18 U.S.C. § 3626(b) (allowing defendants in prison conditions cases to periodically seek
“termination” of previously entered injunctions). See infra Part III.A.
11

See infra, Table 1.

12

See infra, Table 2.

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enter and enforce remedies against unconstitutional conditions of confinement. They are able to
do this in large part because there remains an active prisoners’ rights bar and an active prisoners’
rights docket in federal district courts. I have previously written to urge observers to remember
that American judges are far from autonomous:
[T]he rules of litigation largely confine judicial response to the record developed
and the arguments presented by the parties; for a plaintiff’s judgment, there must
be a connection between the order a court issues, and the claims, evidence, and
requested relief plaintiffs’ counsel submits. . . . [T]he identity, priorities, litigating
strategies, and resources of plaintiffs’ counsel have been of great importance to
the shape and success of litigated prison reform. 13
Judges in prison and jail cases, I argued, have “generally acted by following a path proposed by
plaintiffs’ counsel and by building on the foundation laid at trial.” 14 In the years since passage of
the PLRA, faced with the kind of court-stripping Congress attempted with that statute, 15 judges
more than ever need assistance by the parties. It is for this reason that this article about the
strategies the PLRA has prompted prisoners’ lawyers to use in injunctive cases fits as part of this
symposium exploring federal district judge roles. 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. That assistance is the
topic of this paper. 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.
I. TRENDS IN PRISONER LITIGATION
The PLRA’s sharp impact on the prevalence and outcomes in prison litigation is clear,
but there are still many cases and situations in which courts continue to play a role. Two tables
will make the point. Table 1 shows jail and prison populations from 1970 to the present, along
with federal court filings categorized by the courts as dealing with “prisoner civil rights” or
“prison conditions.” 16 Figure A presents some of the same information in graphic form. Most
13

Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97
MICH. L. REV. 1994, 1997 (1999).
14

Id.

15

See, e.g., Vicki C. Jackson, Introduction: Congressional Control of Jurisdiction and the
Future of the Federal Courts-Opposition, Agreement, and Hierarchy, 86 GEO. L.J. 2445 (1998)
(describing the PLRA and two other 1996 statutes, and observing, “This spate of congressional
jurisdiction-stripping imposes what may be the most significant limitations on federal
jurisdiction since those enacted in connection with World War II price controls and draft
legislation.”); John Boston, The Prison Litigation Reform Act: The New Face of Court Stripping,
67 BROOK. L. REV. 429 (2001); Giovanna Shay & Johanna Kalb, More Stories of JurisdictionStripping and Executive Power: Interpreting the Prison Litigation Reform Act (PLRA), 29
CARDOZO L. REV. 291 (2007).
16

Litigation figures are calculated using data released annually by the Administrative Office
of the U.S. Courts, available in digital form from the Inter-university Consortium for Political
and Social Research. See http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies.

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of these cases seek damages (although only a sliver succeed in obtaining them). Table 2 shifts to
injunctive litigation, showing the prevalence of court orders governing conditions of confinement
reported in the Bureau of Justice Statistics jail and prison census of the given years. 17
TABLE 1: PRISON AND JAIL POPULATION AND PRISONER CIVIL RIGHTS FILINGS
IN FEDERAL DISTRICT COURT, FISCAL YEARS 1970-2012
Incarcerated population
(all figures are for people in custody)
Fiscal
year of
filing
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984

Total
357,292
358,061*
356,092*
364,211*
378,466*
413,816*
438,000*
449,563*
453,980
474,589*
503,586
556,814
614,914
651,439
678,905

State
Federal
prison,
prison,
year-end year-end
176,391 20,038
177,113 20,948
174,379 21,713
181,396 22,815
196,105 22,361
229,685 24,131
248,883 29,117
258,643 30,920
269,765 26,285
281,233 23,356
295,819 23,779
333,251 26,778
375,603 27,311
394,953 28,945
417,389 30,875

Jail,
mid-year
160,863
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
157,930
170,000*
183,988
196,785
212,000
227,541
230,641

Inmate civil rights filings in
federal district court
Total
2,245
3,179
3,635
4,665
5,573
6,527
7,095
8,348
10,087
11,713
13,079
16,332
16,809
17,517
18,339

NonFilings
federal
Federal per 1000
defendants defendants inmates
2,092
153
6.3
2,969
210
8.9*
3,393
242
10.2*
4,257
408
12.8*
5,185
388
14.7*
6,020
507
15.8*
6,701
394
16.2*
7,843
505
18.6*
9,520
567
22.2
11,149
564
24.7*
12,496
583
26.0
15,543
789
29.3
16,075
734
27.3
16,793
724
26.9
17,470
869
27.0

Prisoner population figures come from a variety of publications by the Bureau of Justice
Statistics, a component of the U.S. Department of Justice. Sources are set out comprehensively
in the Technical Appendix that follows this Article.
17

Court order data is from the Bureau of Justice Statistics jail and prison censuses, which
attempt a comprehensive census of the nation’s jails and prisons approximately every five years.
Comprehensive information on these sources is set out in the Technical Appendix. The Census
reports responses from nearly every prison and jail, but those responses omit many known court
orders. For example, there has been a court order involving mental health care at every
California prison since 1997, and another involving medical care since 2002. For information on
the mental health orders, see Coleman v. Brown, No. 2:90-cv-00520 (E.D. Cal.),
http://www.clearinghouse.net/detail.php?id=573. For information on the medical decree, see
Plata v. Brown, No. 3:01-cv-01351 (N.D. Cal.), http://www.clearinghouse.net/detail.php?id=589,
and the Order Adopting Class Action Stipulation as Fair, Reasonable, and Adequate, Plata v.
Davis, No. 3:01-cv-01351 (N.D. Cal. June 20, 2002), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0018-0005.pdf; and the underlying
Stipulation for Injunctive Relief (June 13, 2002), at
http://www.clearinghouse.net/chDocs/public/PC-CA-0018-0001.pdf. Yet no California prison
reported any court order in the Census responses in 2005. So the data in Table 2 should be taken
as indicative of trends rather than dispositive about any given state or facility.

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1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

752,603
806,063
853,114
942,827
1,070,227
1,151,457
1,215,144
1,292,465
1,375,536
1,469,904
1,588,370
1,643,196
1,733,150
1,816,528
1,889,538
1,915,701
1,969,747
2,035,529
2,082,145
2,137,476
2,189,696
2,260,714
2,295,982
2,302,657
2,274,099
2,255,188
2,227,723
2,203,914

451,812
496,834
520,336
562,605
629,995
684,544
728,605
778,495
828,566
904,647
989,004
1,032,676
1,074,809
1,111,927
1,155,878
1,177,240
1,179,954
1,209,145
1,225,971
1,244,216
1,261,071
1,297,536
1,316,105
1,324,539
1,319,563
1,314,445
1,290,212
1,266,999

35,781
43,712
42,478
44,205
53,387
58,838
63,930
72,071
80,815
85,500
89,538
95,088
101,755
110,793
125,682
140,064
149,852
158,216
168,144
177,600
186,364
190,844
197,285
198,414
205,087
206,968
214,774
216,915

265,010
265,517
290,300
336,017
386,845
408,075
422,609
441,899
466,155
479,757
509,828
515,432
556,586
593,808
607,978
598,397
639,941
668,168
688,030
715,660
742,261
772,334
782,592
779,704
749,449
733,775
722,737
720,000*

18,486
20,365
22,069
22,650
23,736
24,051
24,352
28,544
31,693
36,595
39,053
38,262
26,095
24,220
23,512
23,357
22,131
21,988
22,061
21,553
22,484
22,469
21,978
23,555
22,698
22,736
23,362
22,662

17,659
19,657
21,412
21,874
22,803
23,028
23,567
27,723
30,842
35,550
38,022
37,126
25,226
23,312
22,645
22,399
21,224
21,044
20,914
20,337
21,317
21,443
20,825
22,395
21,552
21,614
22,067
21,628

827
708
657
776
933
1,023
785
821
851
1,045
1,031
1,136
869
908
867
958
907
944
1,147
1,216
1,167
1,026
1,153
1,160
1,146
1,122
1,295
1,034

24.6
25.3
25.9
24.0
22.2
20.9
20.0
22.1
23.0
24.9
24.6
23.3
15.1
13.3
12.4

12.2
11.2
10.8
10.6
10.1
10.3
9.9
9.6
10.2
10.0
10.1
10.5
10.2

* Estimate

Sources: Bureau of Justice Statistics, Administrative Office of the U.S. Courts. See Technical
Appendix for source and other details.

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FIGURE A: PRISONER POPULATION & CIVIL RIGHTS FILINGS PER 1000 PRISONERS, FY 1970-2012

Table 1 and Figure A show four phases in the history of prisoner population and filings,
nationwide. Prison and jail populations went up, steeply at first and then at a slower rate, from
1970 to 2005. Since 2005, prison and jail population has plateaued. The prisoner filing rate has
fluctuated more: it increased steeply from 1970 to 1981, declined from 1981 till 1991, increased
for a few years, and then plunged as a result of the PLRA. It continued to shrink for some years
after that. Since 2007, filing rates, prison population, and filings have all plateaued.
TABLE 2: INCIDENCE OF COURT ORDERS, LOCAL JAILS AND STATE PRISONS, 1983-2006

Local
Jails

State
Prisons

Year
1983
1988
1993
1999
2006
1984
1990
1995
2000
2005

(a)
Total
facilities
3,338
3,316
3,268
3,365
3,282
694
957
1,084
1,042
1,067

(b)
Facilities w/
orders
18%
18%
18%
17%
11%
27%
28%
32%
28%
18%

(c)
(d)
Total
Population housed in
population
facilities w/ orders
227,541
51%
336,017
50%
466,155
46%
607,978
32%
756,839
20%
377,036
43%
617,859
36%
879,766
40%
1,042,637
40%
1,096,755
22%

Source: Bureau of Justice Statistics. See Data Appendix.
Omits Federal prisons/jails and community corrections.

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For both jails and prisons, Table 2 evidences very substantial continuity in the years prior to the
PLRA. From 1983/1984 to 1993/1995, about half of the nation’s jail inmates, and about 40% of
the nation’s state prisoners, were housed in facilities subject to court orders (see Column B).
Because court orders tended to apply to larger facilities, in terms of the number of facilities
(rather than the number of prisoners), the coverage reached a bit under one-fifth of jail facilities
and under one-third of prison facilities. (See Column D). But then came the PLRA. The effect
was muted in the first post-PLRA census, for both jails and prisons, but during the 2005/2006
censuses, only about 20% of state or jail inmates are housed in facilities that reported a court
order, and the numbers are lower for facility, rather than population coverage. The PLRA, that
is, had a very significant impact, decreasing—but, importantly, not entirely erasing—the
regulatory impact of litigation on jails and prisons.
In other work, I have explicated the many ways in which the PLRA made prisoners’ rights
cases harder both to bring and win. 18 I focus next on just two provisions, the first governing
entry of and the second governing termination of prospective relief. It is no surprise that in the
nearly two decades since passage of the PLRA, the prisoners’ rights bar, along with the lawyers
who represent corrections agencies and officials, have responded to the PLRA’s requirements by
developing new forms and strategies for settlements. In Parts II and III, below, I set out the
relevant provisions of the statute, and then describe and analyze those responses.

II. ENTRY OF RELIEF, INCLUDING ON SETTLEMENT
A. What the PLRA requires.
Under the PLRA, “prospective relief,” whether resulting from contested litigation or
settlement, may “extend no further than necessary to correct the violation of the Federal right of
a particular plaintiff or plaintiffs.” 19 District judges asked to “grant or approve any prospective
relief” may not do so “unless the court finds that such relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right.” 20 Prospective relief is broadly
defined to include “all relief other than compensatory monetary damages.” 21 This approach is

18

See Schlanger, Inmate Litigation, supra note 3, at 1633–1664; Schlanger, Civil Rights
Injunctions, supra note 3, at 589–595.
19

18 U.S.C. § 3626(a)(1)(A); see Elizabeth Alexander, Isn't It Ironic? The “Particular
Plaintiffs” Provision of the PLRA, 24 FED. SENT. RPTR. 229, __ (2012).
20

18 U.S.C. § 3626(a)(1)(A). For an exploration of the caselaw on the intrusiveness
requirement, see Kiira J. Johal, Note, Judges Behind Bars: The Intrusiveness Requirement’s
Restriction on the Implementation of Relief Under the Prison Litigation Reform Act, 114 COLUM.
L. REV. 715 (2014).
21

18 U.S.C. § 3626(g)(7).

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consonant with the ordinary rules governing contested entry of injunctions in federal court, 22 but
it diverges sharply from the ordinary rules governing settlements. Were it not for the PLRA,
courts could approve prisoners’ rights settlements, like other settlements, much more freely,
without any finding of a legal violation (indeed, avoiding such a finding is a primary settlement
motive). 23 And the terms of those settlements would be limited only by the rule that they “spring
from and serve to resolve a dispute within the court’s subject-matter jurisdiction, . . . com[e]
within the general scope of the case made by the pleadings, . . . further the objectives of the law
upon which the complaint was based,” and are not otherwise unlawful. 24 Thus, as the Supreme
Court has explained, settlement terms could rise above the constitutional floor; “a federal court is
not necessarily barred from entering a consent decree merely because the decree provides
broader relief than the court could have awarded after a trial.” 25 (In recent years, a number of
commenters and legislators have argued that the constraints imposed by the PLRA should be
made more broadly applicable. 26)

22

For a pre-PLRA summaries of federal court injunctive standards, see, for
example,Toussaint v. McCarthy, 801 F.2d 1080, 1086–87 (9th Cir. 1986), cert. denied, 481 U.S.
1069 (1987) (litigated injunction “must be no broader than necessary to remedy the
constitutional violation”; may order “relief that the Constitution would not of its own force
initially require if such relief is necessary to remedy a constitutional violation”; but in that event
“must be narrowly tailored to prevent repetition of proved constitutional violations, and must not
intrude unnecessarily on state functions”). See also, e.g., Dean v. Coughlin, 804 F.2d 207, 213
(2d Cir. 1986); Duran v. Elrod, 760 F.2d 756, 760–61 (7th Cir. 1985). Courts have therefore
commented that the PLRA does not change these requirements for litigated relief. See, e.g.,
Gilmore v. California, 220 F.3d 987, 1006 (9th Cir. 2000) (“in the context of contested decrees,
then, the general standard for granting prospective relief differs little from the standard set forth”
in the PLRA; Smith v. Arkansas Dept. of Correction, 103 F.3d 637, 647 (8th Cir. 1996) (PLRA
“merely codifies existing law and does not change the standards for determining whether to grant
an injunction”).
23

In a class action, of course, settlements must be “fair, reasonable, and adequate.” Fed. R.
Civ. P. 23(e)(2). This requirement safeguards against settlements that are insufficiently proplaintiff, not against settlements that intrude too deeply into defendants’ affairs. E.g., United
States v. City of Miami, 614 F.2d 1322, 1331 (5th Cir. 1980) (“[C]areful scrutiny is necessary to
guard against settlements that may benefit the class representatives or their attorneys at the
expense of absent class members or shareholders.”).
24

Local No. 93, Intern. Ass’n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland, 478 U.S.
501, 525 (1986) (citations and internal quotation marks omitted).
25

Id.; see also Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S. 367, 392 (1992) (“state and
local officers in charge of institutional litigation may agree to do more than that which is
minimally required by the Constitution to settle a case and avoid further litigation”).
26

For arguments that restrictions like this should apply more generally to consent decrees in
government cases, see, e.g., ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE:
WHAT HAPPENS WHEN COURTS RUN GOVERNMENT (2003); Ross Sandler & David Schoenbrod,
The Supreme Court, Democracy and Institutional Reform Litigation, 49 N.Y. L. SCH. L. REV.

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The PLRA does, however, offer an exclusion from its settlement scope constraints.
“Relief,” the statute’s definitional section specifies, “includes consent decrees but does not
include private settlement agreements,” 27 which are defined as “agreement[s] entered into among
the parties that is not subject to judicial enforcement other than the reinstatement of the civil
proceeding that the agreement settled.” 28 The statute emphasizes that it does not “preclude
parties from entering into a private settlement agreement that does not comply with the
limitations on relief . . . , if the terms of that agreement are not subject to court enforcement other
than the reinstatement of the civil proceeding that the agreement settled.” 29 In addition, breach
of a “private settlement agreement” may be sought in state court. 30
B. How parties continue to settle cases.
Commenters on the PLRA prior to its passage thought the provisions limiting settlements
might, in fact, doom all settlements in injunctive cases. For example, then-Senator Joe Biden
critized the PLRA’s “restrictions on the power of those governments from voluntarily
negotiating their own agreements,” arguing that this “would place an even greater burden on the
courts to litigate and relitigate these suits.” 31 In fact, the urge to settle is sufficiently powerful
that settlements continue. Parties who have abundant reasons to reach agreements have three
strategies for getting those agreements approved: they can craft an acceptable stipulation, they
can structure their settlement as a conditional dismissal, or they can anticipate state-court
enforcement of the settlement.
1. Acceptable stipulations.
The first method for settling an injunctive case under the PLRA is to obtain the District
Court’s approval of the consent injunction, consistent with the Act’s requirements. That means
obtaining a “find[ing] that such relief is narrowly drawn, extends no further than necessary to
correct the violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right”—following a number of courts and commentators, I’ll call this a
need-narrowness-intrusiveness finding. 32

915 (2005); Michael T. Morley, Consent of the Governed or Consent of the Government? The
Problems with Consent Decrees in Government-Defendant Cases, 16 U. PA. J. CONST. L. 637
(2014); Federal Consent Decree Fairness Act, H.R. 3041 (112th Cong.), available at
http://www.gpo.gov/fdsys/pkg/BILLS-112hr3041ih/pdf/BILLS-112hr3041ih.pdf.
27

18 U.S.C. § 3626(g)(9).

28

18 U.S.C. § 3626(g)(6).

29

18 U.S.C. § 3626(c)(2)(A).

30

18 U.S.C. § 3626(c)(2)(B).

31

141 Cong. Rec. S14611-01 (daily ed. Sept. 29,1995).

32

E.g., Benjamin v. Jacobson, 172 F.3d 144, 150 (2d Cir. 1999); Cason v. Seckinger, 231
F.3d 777, 784 (11th Cir. 2000); John Boston, The Prison Litigation Reform Act: The New Face
of Court Stripping, 67 BROOK. L. REV. 429, 445 (2001).

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The obstacle this provision poses to settlement is not so much its insistence on narrow
remedial scope—after all, a settlement agreeable to both the plaintiffs and the correctional
agency they have sued is almost definitionally less “intrusive” than a remedy imposed nonconsensually. To quote one district court, “that the defendants chose to join the plaintiffs in
selecting this remedy would seem to mean—and must be taken to mean—that they understood it
to be precisely tailored to the needs of the occasion, that it is narrowly drawn and least
intrusive—in fact not intrusive at all.” 33 Prisoners’ rights lawyer John Boston’s comprehensive
summary of the caselaw explains that even courts that give settlement less weight find
“[a]greements between the parties” to be “‘strong evidence,’ if not dispositive, that provisions
reflecting those agreements comply with the needs-narrowness-intrusiveness requirement.” 34
The Eleventh Circuit stated the point more generally in an opinion remanding a longstanding
Georgia prison case for the district court to decide if there remained a “current and ongoing
violation” and whether the challenged relief satisfied the need-narrowness-intrusive standards,
explaining that the PLRA does not undermine the ordinary role of stipulations in civil litigation:
“We do not mean to suggest that the district court must conduct an evidentiary hearing about or
enter particularized findings concerning any facts or factors about which there is not dispute. The
parties are free to make any concessions or enter into any stipulations they deem appropriate.” 35
The problem for settlement is, rather, that the PLRA seems to require a finding of
liability—a finding that there has been a “violation of [a] Federal right” for which correction is
“necessary.” 36 Such a finding could, like any factual finding in court, rest on a stipulation. But
while correctional agencies seeking approval of an injunctive settlement are happy to stipulate
33

Morales Feliciano v. Calderon Serra, 300 F.Supp.2d 321, 334 (D.P.R. 2004) (footnote
omitted), aff’d, 378 F.3d 42, 54-56 (1st Cir. 2004), cert. denied, 543 U.S. 1054 (2005). See also,
e.g., Little v. Shelby County, Tenn., No. 96-cv-02520, 2003 WL 23849734, at *1-2 (W.D.Tenn.
Mar. 25, 2003) (“Where the parties in jail reform litigation agree on a proposed remedy, or
modification of a proposed remedy, the Court will engage in limited review for the purpose of
assuring continued compliance with existing orders and compliance with the Prison Litigation
Reform Act. . . . Clearly, the least intrusive means in this case is that advocated by the parties
themselves and determined by the parties and the court-appointed experts as being in the interest
of both inmate and public safety.”).
34

John Boston, The Prison Litigation Reform Act: Prepared for Second Circuit Staff
Attorneys’ Training (November 1, 2013) (on file with author), quoting Benjamin v. Fraser, 156
F.Supp.2d 333, 344 (2001), aff’d in part, vacated and remanded in part on other grounds, 343
F.3d 35 (2d Cir. 2003) (quoting Cason v. Seckinger, 231 F.3d at 785 n. 8 (noting particularized
findings are not necessary concerning undisputed facts, and the parties may make concessions or
stipulations as they deem appropriate)); accord, Clark v. California, 739 F. Supp. 2d 1168, 1229
(N.D.Cal. 2010) (citing parties’ agreement that the agreed relief met the statutory requirements);
McBean v. City of New York, No. 02-cv-05426, 2007 WL 2947448, at *3 (S.D.N.Y. Oct. 5,
2007) (weighing parties’ agreement that detailed requirements meet need-narrownessintrusiveness standard).
35

Cason v. Seckinger, 231 F.3d 777, 785 n.8 (11th Cir. 2000).

36

18 U.S.C. § 3626(a)(1)(A)

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that that settlement’s scope is appropriate, they are rarely willing to stipulate in plain language
that they have violated the Constitution or a federal statute. Such a stipulation comes carries
significant political cost, after all, and could have adverse collateral effects, prejudicing the
agency in other lawsuits, including damage actions.
Accordingly, parties that want settlements have come up with some opaque but—at least
for many district courts—acceptable formulations for their stipulations. 37 A few of the
provisions that have passed muster follow:
(a) Stipulation by statutory citation:
The court shall find that this Stipulation satisfies the requirements of 18 U.S.C.A.
§ 3626(a)(1)(A) and shall retain jurisdiction to enforce its terms. The court shall
have the power to enforce the Stipulation through specific performance and all
other remedies permitted by law. Neither the fact of this Stipulation nor any
statements contained herein may be used in any other case or administrative
proceeding, except that Defendants reserve the right to use this Stipulation and the
language herein to assert issue preclusion and res judicata in other litigation
seeking class or systemic relief. When these legal defenses are raised, Defendants
will send copies of such complaints to Plaintiffs’ counsel. 38
(b) Stipulation by statutory quotation:
The parties stipulate, based upon the entire record, that the relief set forth in this
Settlement Agreement is narrowly drawn, extends no further than necessary to
correct violations of federal rights, and is the least intrusive means necessary to
correct violations of federal rights.” 39

37

For a similar discussion of some of these terms, see Elizabeth Alexander, Getting to Yes in
a PLRA World, 30 PACE L. REV. 1672 (2010).
38

Stipulation for Injunctive Relief at ¶ 149, Fussell v. Wilkinson, No. 1:03-cv-00704 (S.D.
Ohio Jan. 1, 2005), available at http://www.clearinghouse.net/chDocs/public/PC-OH-00200002.pdf; see also, e.g., Amended Stipulation and Order, Perez v. Tilton, No. 3:05-cv-05241
(N.D. Cal. Aug. 21, 2006), available at http://www.clearinghouse.net/chDocs/public/PC-CA0033-0002.pdf; Stipulated Agreement Between Plaintiff Intervenors and Defendants at ¶ 1-2,
McClendon v. City of Albuquerque, No. 6:95-cv-00024 (D. N.M. June 30, 2005), available at
http://www.clearinghouse.net/chDocs/public/JC-NM-0002-0012.pdf.
39

Settlement Agreement at ¶ 21, Duffy v. Riveland, No. 2:92-cv-01596 (W.D. Wash. June 3,
1998), available at http://www.clearinghouse.net/chDocs/public/PC-WA-0003-0004.pdf. See
also, e.g., Consent Order at ¶ 1-2, Duvall v. Glendening, No. 1:94-cv-02541 (D. Md. Aug. 22,
2004), available at http://www.clearinghouse.net/chDocs/public/PC-MD-0006-0003.pdf.

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(c) Stipulation to necessity to correct “the alleged violation”:
The Court finds that the relief provided in the PSA is narrowly drawn and extends
no further than necessary to correct the alleged violation in conformance with the
Prison Litigation Reform Act, 18 U.S.C. §3625(a)(1). 40
(d) Stipulation that expressly denies liability:
The relief granted herein is narrowly drawn, extends no further than necessary to
correct a violation of a federal right, and is the least intrusive means necessary to
correct the violation of a federal right.
Nothing in this Order and Agreement, including, specifically, the stipulation in
Paragraph 2, constitutes an admission of liability and undersigned Defendants and
DPSDAC vigorously dispute that they have violated the federal rights of Plaintiff
Sandra Etters or any other adult female inmate. The stipulation set forth in
Paragraph 2 is included expressly to facilitate the parties’ intent to enable the
Court to: (a) retain jurisdiction for the desired term; (b) if necessary, entertain any
future motion by North Carolina Prisoner Legal Services, Inc. . . . to enforce the
terms of this Order and Agreement; and (c) serve as the exclusive forum for any
such enforcement. The stipulation in Paragraph 2, as well as all other
representations, commitments, or stipulations in this Order and Agreement, shall
have no precedential value and may not be relied on as precedent in any future
claim, without prejudice or limitation, however, to the ability of NCPLS to
enforce the terms of this Order and Agreement.
This Order and Agreement is entered into by the parties as part of an amicable
settlement of disputed claims raised in this action. In entering into this settlement,
Defendants Young and Lancaster make no admissions of liability to Plaintiff and
voluntarily assume the obligations set forth herein “The Parties agree that the
stipulated remedies set forth in this Consent Decree are narrowly drawn, extend

40

Consent Decree, Order and Judgment Approving and Adopting Proposed Settlement
Agreement at ¶ 12, Laurna Chief Goes Out v. Missoula, No. 9:12-cv-00155 (D. Mont. Oct. 31,
2013), available at http://www.clearinghouse.net/chDocs/public/JC-MT-0002-0001.pdf. See
also, e.g., Decree at 15, Lozeau v. Lake County, Montana, No. 95-cv-00082 (D. Mont. Oct. 23,
1996), available at http://www.clearinghouse.net/chDocs/public/JC-MT-0001-0001.pdf; Consent
Judgment at 44, Jones v. Gusman, No. 2:12-cv-00859 (E.D. La. Dec. 11, 2012), available at
http://www.clearinghouse.net/chDocs/public/JC-LA-0028-0011.pdf (refering to “the violations
of the federal rights as alleged by Plaintiffs in the Complaints” and providing “Any admission
made for purposes of this Agreement is not admissible if presented by Third Parties in another
proceeding”); Settlement Agreement at ¶ 4, New Times, Inc. v. Ortiz, No. 1:00-cv-00612 (D.
Colo. Aug. 19, 2004), available at http://www.clearinghouse.net/chDocs/public/PC-CO-00210001.pdf.

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no further than necessary to correct the violation of Federal rights, and are the
least intrusive means necessary to correct the violation of the Federal rights. 41
(e) Stipulation that “conditions . . . necessitate” remedy:
For the purposes of this lawsuit only and in order to settle this matter, Defendants
stipulate, and this Court finds, that the conditions at the MDCR Jail facilities
necessitate the remedial measures contained in this Agreement, including
medical, mental health and suicide provisions.
The Parties stipulate that this Agreement complies in all respects with the Prison
Litigation Reform Act, 18 U.S.C. § 3626(a). The Parties further stipulate and the
Court finds that the prospective relief in this Agreement is narrowly drawn,
extends no further than necessary to correct the violations of federal rights as
alleged by United States in its Complaint and Findings Letter (attached as Exhibit
‘A’), is the least intrusive means necessary to correct these violations, and will not
have an adverse impact on public safety or the operation of a criminal justice
system. Accordingly, the Parties represent, and this Court finds, that the
Agreement complies in all respects with 18 U.S.C. § 3626(a).
This Agreement is not intended to impair or expand the right of any person or
entity to seek relief against the County or its officials, employees, or agents, for
their conduct. This Agreement is not intended to alter legal standards governing
any such claims. 42

41

Order and Agreement at ¶ 2-4, Etters v. Young, No. 5:09-ct-03187 (E.D.N.C. May 21,
2012), available at http://www.clearinghouse.net/chDocs/public/PC-NC-0013-0003.pdf; for
more information on the case, see Etters v. Young, No. 5:09-ct-03187 (E.D.N.C.), at the Civil
Rights Litigation Clearinghouse, http://www.clearinghouse.net/detail.php?id=13820; see Etters
v. Young, No. 5:09-ct-03187, 2012 WL 1950415 at *2 (E.D.N.C. May 30, 2012) (“The parties
have stipulated, and the court finds, that the relief provided in the parties’ settlement agreement
is narrowly drawn, extends no further than necessary to correct the violation of a Federal right,
and is the least intrusive means necessary to correct the violation of the Federal right.”). See
also, e.g., Consent Decree, Presley v. Epps, No. 4:05-cv-00148 (N.D. Miss. Feb. 15, 2006)
available at http://www.clearinghouse.net/chDocs/public/PC-MS-0005-0001.pdf; Stipulation and
Order at ¶ 1, Duffy v. Riveland, No. 2:92-cv-01596 (W.D. Wash. Aug. 31, 1998), available at
http://www.clearinghouse.net/chDocs/public/PC-WA-0003-0010.pdf; Consent Decree, Order
and Judgment, Makinson v. Bonneville County, No. 4:97-cv-00190 (D. Idaho Apr. 30, 1997),
available at http://www.clearinghouse.net/chDocs/public/JC-ID-0002-0001.pdf; Settlement
Agreement at 9, New Times, Inc. v. Ortiz, No. 1:00-cv-00612 (D. Colo. Aug. 19, 2004),
available at http://www.clearinghouse.net/chDocs/public/PC-CO-0021-0002.pdf.
42

Consent Decree at ¶ 11-13, United States v. Miami-Dade County, No. 1:13-cv-21570 (S.D.
Fla. May 1, 2013), available at http://www.clearinghouse.net/chDocs/public/JC-FL-00210003.pdf. For more information on the case, see United States v. Miami-Dade County, No. 1:13cv-21570 (S.D. Fla.), at the Civil Rights Litigation Clearinghouse,
http://www.clearinghouse.net/detail.php?id=12950. See also Consent Order at ¶ 1-2, Duvall v.

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(f) Stipulation of violation in plain terms (with and without preclusion language) :
For purposes of this lawsuit only and in order to settle this matter, the Defendants
stipulate that they have violated certain federal rights of inmates as alleged in the
pleadings. The parties further stipulate and agree that the prospective relief in this
Decree is narrowly drawn, extends no further than necessary to correct these
certain violations of federal rights set forth in the Complaint, is the least intrusive
means necessary to correct these violations, and will not: have an adverse impact
on public safety or the operation of a criminal justice system. Accordingly, the
parties agree and represent to the Court that the Decree complies in all respects
with the provisions of 18 U.S.C. § 3626(a), and may serve as the factual and legal
basis for a court order issued pursuant to those provisions.
The issue of liability has not been litigated. The parties ask the Court to approve
this Decree without a full hearing on the merits, on the basis of the United States’
Complaint and the above stipulation.
This Decree is not intended to have any preclusive effect except between the
parties. Should the issue of the preclusive effect of this Decree be raised in any
proceedings other than this civil action, the parties agree to certify that this Decree
was intended to have no such preclusive effect. 43
(g) Stipulation to court findings:
Plaintiffs and Defendant jointly stipulate that the Court should make the findings
required for prospective relief under 18 U.S.C. § 3626(a)(1)(A) and issue a
permanent injunction . . . . 44

Glendening, No. 1:94-cv-02541, (D. Md. Aug. 22, 2004), available at
http://www.clearinghouse.net/chDocs/public/PC-MD-0006-0003.pdf.
43

Consent Decree at ¶ 58-60, U.S. v. Clay County, No. 4:97-cv-00151 (M.D. Ga. Aug. 19,
1997), available at http://www.clearinghouse.net/chDocs/public/JC-GA-0010-0004.pdf. For
more information on the case, see U.S. v. Clay County, No. 4:97-cv-00151 (M.D. Ga. 1997), at
the Civil Rights Litigation Clearinghouse, http://www.clearinghouse.net/detail.php?id=69. See
also, e.g., Settlement Agreement and Order at ¶15, Clark v. California, No. 3:96-cv-01486 (N.D.
Cal. Dec. 3, 2001), available at http://www.clearinghouse.net/chDocs/public/PC-CA-00050010.pdf (defendants stipulate “that they have violated the federal rights of plaintiffs in a manner
sufficient to warrant the relief contained herein” and “that the relief set forth herein is narrowly
drawn, extends no further than necessary to correct the violation of the federal rights and is the
least intrusive means necessary to correct the violation of the federal rights.”); Clark v.
California, 739 F.Supp.2d 1168, 1229 (N.D.Cal. 2010) (noting parties’ agreement).
44

Joint Motion to Approve Resolution of Class Action at ¶ 2, Martinez v. Maketa, No. 1:10cv-02242 (D.Colo. Mar. 28, 2011), available at http://www.clearinghouse.net/chDocs/public/JCCO-0004-0009.pdf. See Martinez v. Maketa, 2011 WL 2222129, at *1 (D.Colo. June 7, 2011)
(noting parties’ stipulation that court should make PLRA-required findings, and making such
findings).

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For purposes of this lawsuit only and in order to settle this matter, the Defendants
stipulate that they have violated certain federal rights of inmates as alleged in
thepleadings. The parties further stipulate and agree that the prospective relief in
this Decree is narrowly drawn, extends no further than necessary to correct these
certain violations of federal rights set forth in the Complaint, is the least intrusive
means necessary to correct these violations, and will not: have an adverse impact
on public safety or the operation of a criminal justice system. Accordingly, the
parties agree and represent to the Court that the Decree complies in all respects
with the provisions of 18 U.S.C. § 3626(a), and may serve as the factual and legal
basis for a court order issued pursuant to those provisions.
The issue of liability has not been litigated. The parties ask the Court to approve
this Decree without a full hearing on the merits, on the basis of the United States’
Complaint and the above stipulation.
This Decree is not intended to have any preclusive effect except between the
parties. Should the issue of the preclusive effect of this Decree be raised in any
proceedings other than this civil action, the parties agree to certify that this Decree
was intended to have no such preclusive effect. 45
My own personal favorite of these quotations is item (e), from the Consent Decree that settled
the medical and mental health care case brought by the U.S. Department of Justice against the
Miami-Dade County jail, under the Civil Rights of Institutionalized Persons Act. The negotiated
language has several attractive features. First, like all of the settlements except for the first one
in (g), it avoids preclusive effect, making settlement more attractive to the defendant and
therefore more available to the plaintiff. Second, the language of the need-narrownessintrusiveness concession is carefully phrased. As a number of courts have commented, “Neither
the PLRA nor caselaw requires a plainly worded concession of liability.” 46 A very plain
concession—like (f)’s explicit reference to “violat[ion]” of federal rights—draws attention and
concomitant political costs. But the Miami-Dade consent decree avoids complete opacity—like,

45

Consent Decree at ¶ 58-60, U.S. v. Clay County, No. 4:97-cv-00151 (M.D. Ga. Aug. 19,
1997), available at http://www.clearinghouse.net/chDocs/public/JC-GA-0010-0004.pdf,
approved, Order at ¶ 1, U.S. v. Clay County, No. 4:97-cv-00151 (M.D. Ga., Aug. 26, 1997)
(making PLRA findings, including, “The prospective relief in the Decree is necessary to correct
certain violations of the federal rights of the inmates of the Clay County jail as set forth in the
Complaint”), available at http://www.clearinghouse.net/chDocs/public/JC-GA-0010-0005.pdf;
see also Opinion and Order at ¶ 8-9, Jones’ El v. Berge, No. 3:00-cv-00421 (W.D. Wis. June 25,
2002), available at http://www.clearinghouse.net/chDocs/public/PC-WI-0001-0007.pdf (making
required findings in order separate from order accepting the parties’ settlement agreement); see
also Settlement Agreement at ¶ 11-12, Jones’ El v. Berge, No. 3:00-cv-00421 (W.D. Wis. Jan.
24, 2002), available at http://www.clearinghouse.net/chDocs/public/PC-WI-0001-0003.pdf
(referring to “alleged” violations and containing both defendants’ denial of liability and a
stipulation that the agreement was consistent with all PLRA requirements).
46

Jones v. Gusman, No. 12-859, 2013 WL 2458817, at *38 (E.D. La. June 6, 2013).

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say, (a)’s stipulation by statutory citation. It is fairly phrased, if not calculated for maximum
public impact.
2. Conditional Dismissal
An alternative method for settling an injunctive case is to escape the limitations the
PLRA imposes on “prospective relief,” by using what the statute terms a “private settlement
agreement”—defined as an “agreement entered into among the parties that is not subject to
judicial enforcement other than the reinstatement of the civil proceeding that the agreement
settled.” 47 This kind of settlement is available using the ordinary processes for voluntary
dismissals under Federal Rule of Civil Procedure 41(a); if the parties intend the district court to
maintain jurisdiction over a case they have settled this way, they can so specify in the settlement,
and that term may be approved by the court as one of “such terms and conditions as the court
deems proper.” 48 (Such term must be express. 49) Settlements like this are routine in cases
seeking damages, where compliance—payment—is an easily-monitored one-time event. Even in
injunctive matters, the approach was not unheard of prior to the PLRA’s enactment. 50 But

47

18 U.S.C. § 3626(g)(6). See Ghana v. New Jersey State Parole Bd., No. 01-cv-01620, 2011
WL 3608633, at *3 (D.N.J. Aug. 15, 2011) (explaining that absent a consent decree meeting
PLRA prospective relief requirements, plaintiff’s only federal court remedy for breach of a
settlement agreement was reinstatement of the underlying action).
48

Fed. R. Civ. Pro. 41(a)(2). As the Supreme Court explained in Kokkonen v. Guardian Life
Insurance, 511 U.S. 375, 381–82 (1994):
When the dismissal is pursuant to Federal Rule of Civil Procedure 41(a)(2), which
specifies that the action “shall not be dismissed at the plaintiff’s instance save
upon order of the court and upon such terms and conditions as the court deems
proper,” the parties’ compliance with the terms of the settlement contract (or the
court’s “retention of jurisdiction” over the settlement contract) may, in the court’s
discretion, be one of the terms set forth in the order. Even when . . . the dismissal
is pursuant to Rule 41(a)(1)(ii) (which does not by its terms empower a District
Court to attach conditions to the parties’ stipulation of dismissal) we think the
court is authorized to embody the settlement contract in its dismissal order (or,
what has the same effect, retain jurisdiction over the settlement contract) if the
parties agree. Absent such action, however, enforcement of the settlement
agreement is for state courts, unless there is some independent basis for federal
jurisdiction.
See Hazelton v. Wrenn, No. 08-cv-00419 , 2013 WL 1953354, at *1-2 (D.N.H. Apr. 10, 2013)
(taking this approach in a case subject to the PLRA), report and recommendation approved,
2013 WL 1953517 (D.N.H. May 9, 2013).
49

See Kokkonen v. Guardian Life Insurance, 511 U.S. 375 (1994), York v. County of El
Dorado, 119 F. Supp. 2d 1106, 1109 (E.D. Cal. 2000).

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foregoing the ordinary enforcement mechanisms (court process, modification of the order, public
shaming facilitated by the attention often paid to court cases, and contempt) is generally very
unappealing for plaintiffs. Only since 1996, when the PLRA diminished prisoner plaintiffs’
bargaining power, has this kind of settlement grown common.
The parties used a conditional dismissal, for example, in a case seeking to improve
interpretive and other communication services for deaf prisoners in Virginia. The settlement
agreement provided:
Pursuant to 18 U.S.C. §3626(c)(2), during the term of the Agreement, plaintiffs
may move the court for reinstatement of the lawsuit, or may elect to proceed in
state court and seek specific performance or institute an action for breach subject
to notification as set forth in paragraph 2 of this Subsection. An action to enforce
this Agreement does not include any action for damages. A Deaf inmate seeking
to enforce this Agreement in state court can only seek to have a court order
VDOC or VDCE to comply with the terms of this Agreement. . . . This
Agreement is a private settlement agreement within the meaning of 18 U.S.C. §
3626. 51
The Court accordingly “ORDERED that by consent of the parties and consistent with 18 U.S.C.
§ 3626(c)(2), the Court shall retain jurisdiction pursuant to Kokkonen v. Guardian Life Insurance
Co. of America, 511 U.S. 375 (1994) through October 18, 2015 for the limited purpose of
reinstating this lawsuit under the terms of the Agreement.” 52
Rule 41(a) dismissals sometimes specify more comprehensively the conditions governing
reinstatement of the action, requiring adjudication of non-compliance prior to continuation of the

50

See, e.g., York v. County of El Dorado, 119 F. Supp. 2d 1106, 1107 (E.D. Cal. 2000)
(“[T]he undersigned clearly recalls, and the parties do not disagree, that the sine qua non for the
County’s agreement to settle was the dismissal and the fact that the settlement was not to be
construed as a consent decree.”). {I’M TRYING TO GET THE ACTUAL SETTLEMENT, BUT
CURRENTLY DON’T HAVE IT} Cf. Judgment at ¶ 6, Taylor v. State of Arizona, No. Civ. 7221 PHX (D. Ariz. Oct. 19, 1973), available at
http://chadmin.clearinghouse.net/chDocs/public/PC-AZ-0007-0010.pdf (“That all relief sought
by plaintiff members of the class heretofore designated to which they are entitled is granted by
this Judgment and that the class, collectively and individually, is entitled to no other relief under
this action.”); Taylor v. United States, 181 F.3d 1017, 1018 (9th Cir. 1999) (quoting that
provision and holding that the 1973 judgment therefore did not constitute prospective relief
subject to termination under the PLRA).
51

Settlement Agreement at 21-22, Minnis v. Johnson, No. 1:10-cv-00096 (E.D. Va. Oct. 18,
2010), available at http://chadmin.clearinghouse.net/chDocs/public/PC-VA-0019-0001.pdf.
52

Docket entry 109, Minnis v. Johnson, No. 1:10-cv-00096 (E.D. Va. Nov. 17, 2010),
available at http://chadmin.clearinghouse.net/chDocs/public/PC-VA-0019-9000.pdf.

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underlying litigation. For example, the settlement of a state-wide Native American religion case
against New York’s Department of Corrections, provided:
[T]he parties will jointly move the Court for entry of an order dismissing this
action, pursuant to Fed. R. Civ. P. 23(e) and 41(a)(2), and will attach a copy of
this Stipulation to such motion. This dismissal shall be without prejudice to
plaintiffs’ right to move to reinstate the action . . . , within three (3) years from the
date the Stipulation is signed.
If, after sixty (60) days following any meeting [about compliance]. . . , plaintiffs’
counsel believes that defendants are not in ‘substantial compliance’ with the terms
of this Stipulation (as defined herein), plaintiffs’ counsel may request a
conference with all parties before the Honorable Charles J. Siragusa, United
States District Court, concerning the filing of a motion to reinstate this lawsuit, . .
. . Plaintiffs’ counsel may request such a conference no earlier than five (5)
months from the date this Stipulation is signed by the parties. Defendants shall be
considered to be in ‘substantial compliance’ with the terms of this Stipulation
unless defendants’ failures or omissions to meet the terms of the Stipulation were
not minimal or isolated but were substantially and sufficiently frequent and
widespread as to be systemic.
The case shall not be reinstated unless the Court finds by clear and convincing
evidence that defendants’ failures or omissions to meet the terms of the
Stipulation were not minimal or isolated but were substantially and sufficiently
frequent and widespread as to be systemic. 53
Under these provisions, if the plaintiffs sought to continue this litigation based on noncompliance with the settlement, they would first have to demonstate that non-compliance to the
district judge, and at that point would win merely the procedural right to continue to litigate, as if
the settlement had never occurred. 54

53

Rule 41 Voluntary Stipulation of Dismissal Subject to Conditions at 17-18, Hughes v.
Goord, No. 6:97-cv-06431 (W.D.N.Y. July 9, 1999), available at
http://www.clearinghouse.net/chDocs/public/PC-NY-0040-0001.pdf; see also, Decision and
Order at 7, Hughes v. Goord, No. 6:97-cv-06431 (W.D.N.Y. Sept. 5, 2000), available at
http://www.clearinghouse.net/chDocs/public/PC-NY-0040-0003.pdf (“It is hereby ordered that
this action is dismissed as settled, upon the terms set forth in the stipulation of dismissal [#30],
which is incorporated and made a part of this Decision and Order.”). For more information on
the case, see Hughes v. Goord, No. 6:97-cv-06431 (W.D.N.Y.), at the Civil Rights Litigation
Clearinghouse, http://www.clearinghouse.net/detail.php?id=887.
54

For an example of a decree in which reinstatement required adjudication of noncompliance,
see Order [Adopting Findings and Recommendations], Rouser v. White, No. 2:93-cv-00767
(C.D. Cal. Mar. 23, 2004), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA0066-0004.pdf (adjudicating “motion to enforce the settlement agreement by reinstating the

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Another court took a similar tack, although it framed the settlement as a stay, rather than
a conditional dismissal, in a system-wide case dealing with solitary confinement of prisoners
with mental illness. The Agreement in that case provided:
“If the Court finds that the Department is not in substantial compliance, i.e., is in
substantial non-compliance, with a provision or provisions of this Settlement Agreement,
it may enter an order consistent with equitable principles, but not an order of contempt,
that is designed to achieve compliance.”
And then, escalation:
“If DLC contends that the Department has not complied with an order entered
under the preceding paragraph, it may, after reasonable notice to the Department,
move for further relief from the Court to obtain compliance with the Court’s prior
order. In ruling on such a motion, the Court may apply equitable principles and
may use any appropriate equitable or remedial power then available to it.” 55
Given this provision for enforcement, this reads almost like a consent decree. But District Judge
Michael Wolf explained in his order approving the agreement that “to obtain an order providing
relief that is enforceable by contempt, plaintiff must prove not only that a provision of the
Agreement has been violated but also that there has been a violation of a federal right, and that
the relief ordered is limited only to what is necessary to remedy that violation as required by the
PLRA, 18 U.S.C. § 3626(a)(1)(A).” 56
Other settlements assign the evaluation of non-compliance that is a prerequisite for
reinstatement of the action to experts, rather than the court. In a lawsuit under the Civil Rights of
Institutionalized Persons Act brought by the United States against the state of Montana, the
parties agreed:

original action,” and remanding for “an evidentiary hearing, using applicable standards of
contract law, to determine whether the settlement agreement was in fact violated”); Order
[Motion to vacate evidentiary hearing date], Rouser v. White, No. 2:93-cv-00767 (C.D. Cal.
Aug. 4, 2004), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA-00660008.pdf (denying motion to vacate the hearing date); [Proposed] Order, Rouser v. White, No.
2:93-cv-00767 (C.D. Cal. Aug. 9, 2005), available at
http://chadmin.clearinghouse.net/chDocs/public/PC-CA-0066-0021.pdf (stipulation to
reinstatement of action). For more information on this case, see Rouser v. White, No. 2:93-cv00767 (C.D. Cal.), at the Civil Rights Litigation Clearinghouse,
http://www.clearinghouse.net/detail.php?id=13836.
55

Settlement Agreement at 17, Disability Law Ctr v. Massachusetts Dep’t of Correction, No.
1:07-cv-10463 (D. Mass. Dec. 12, 2011), available at
http://www.clearinghouse.net/chDocs/public/PC-MA-0026-0004.pdf.
56

Disability Law Ctr. v. Massachusetts Dep’t of Correction, 960 F. Supp. 2d 271, 277–78 (D.
Mass. 2012).

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Immediately upon execution of this Agreement, the parties shall jointly move the
Court for entry of an Order conditionally dismissing this action, pursuant to Fed.
R. Civ. P. 41(a)(2) conditional upon defendants’ achieving compliance with its
terms, and shall attach this Agreement to such motion. The motion shall request
that the case be placed on the Court’s inactive docket, though the Court shall
retain jurisdiction over the case until a final dismissal with prejudice.
If the experts conclude at the end of their fourth evaluation tour that there remain
areas in which defendants have failed to reach substantial compliance, defendants
will be in default of this agreement, and the case shall, upon plaintiff’s motion, be
restored to the Court’s active docket as to those issues affected by defendants
failure to comply. 57
And still others allow plaintiffs’ counsel to determine when noncompliance justifies
reinstatement the action, without any third-party or judicial agreement. For example, in another
New York case, this one involving transportation of prisoners who use wheelchairs, the
settlement provided:
Following any meeting with the Court as set forth in Paragraph 14 above,
Plaintiff’s counsel may file a motion with the Court for an Order reinstating the
issues of this lawsuit which are the subject of this Voluntary Stipulation of Partial
Dismissal. Plaintiff may not file such a motion without first requesting a premotion meeting with the Defendants and the Court as provided in Paragraphs 13
and 14 above and, if granted by the Court, participating in such meeting. Plaintiff
shall make such a motion for reinstatement only upon Plaintiff’s counsel’s good
faith belief that there is a failure on the part of Defendants to comply with the
terms of this Voluntary Stipulation that is more substantial and pervasive than an
isolated instance of a prisoner in a wheelchair being transported in a fashion
which is not in accordance with this agreement. 58
Finally, plaintiffs may expressly retain their complete discretion to reinstate the matter.
This was the approach in a jail settlement with the City of Philadelphia, which provided, simply,
“Plaintiffs reserve the right to reinstate these proceedings during the pendency of the Settlement
Agreement.” 59

57

Stipulated Agreement at 1-2, 13, U.S. v. Montana, No. 94-cv-90 (D. Mont. Jan. 20, 1997),
available at http://www.clearinghouse.net/chDocs/public/PC-MT-0003-0005.pdf.
58

Rule 41 Voluntary Stipulation of Partial Dismissal Subject to Conditions at 6-7, Shariff v.
Goord, No. 6:04-cv-06621, (W.D.N.Y. Oct. 19, 2011), available at
http://www.clearinghouse.net/chDocs/public/PC-NY-0057-0005.pdf.
59

Settlement Agreement at 7, Williams v. City of Philadelphia, No. 2:08-cv-01979 (E.D. Pa.
Apr. 29, 2011), available at http://chadmin.clearinghouse.net/chDocs/public/JC-PA-00340010.pdf.

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Whatever the language governing reinstatement, it seems that very few prisoner plaintiffs
have actually sought reinstatement for an allegedly breached settlement. In fact, I have been able
to locate only one such case, 60 after searching both Westlaw and the Civil Rights Litigation
Clearinghouse, 61 and after asking prisoners’ lawyers on a well-populated listserv. I can only
speculate about the causes of this scarcity. Given the demonstrably high prevalence of
noncompliance with (de jure) fully enforceable settlements, documented in thousands of
opinions over the decades, it seems most plausible that noncompliance with private settlement
agreements is similarly spotty. But perhaps plaintiffs agree to private settlements more readily
when they are very confident about prospects for compliance, so noncompliance is rarer than in
the case of enforceable agreements. Alternatively or in addition, perhaps reinstatements are few
and far between because threats to seek reinstatement often succeed in eliciting compliance or
something closer to it. Or perhaps reinstatements or efforts to obtain them are occurring, but are
simply hard to locate.
3. State-court Enforcement
Settlements can also qualify as PLRA-defined “private settlement agreements” if they are
subject to state-court enforcement, rather than or in addition to reinstatement of the federal
litigation. Many settlements duly recite state court enforcement as a possible remedy for
noncompliance. For example, the settlement in a lawsuit brought by mentally ill Indiana
prisoners provided, “The parties recognize and acknowledge that this Private Settlement
Agreement is intended to be a valid contract under the laws of ihe State of Indiana, enforceable
in the courts of the State of Indiana.” 62
But such recitations are not, it seems, the prelude to actual ventures into state court to
enforce federal settlements. State court is often an unattractive forum for plaintiffs. (After all, if
they preferred state court, they could have sued there to begin with 63). Alison Brill has argued
persuasively that state-court enforcement of a settlement-as-contract is even more unattractive,
because of doctrines and inclinations towards governmental immunity and against specific
60

See Rouser v. White, supra note 54.

61

The Civil Rights Litigation Clearinghouse, http://clearinghouse.net (which I founded and
head) collects and displays documents and information relating to large-scale civil rights cases in
many categories. Post-PLRA private settlement agreements in jail and prison injunctive cases
are collected at: http://www.clearinghouse.net/results.php?searchSpecialCollection=29.
62

Private Settlement Agreement Between Defendants and Plaintiffs, Mast v. Donahue, No.
2:05-cv-00037 (S.D. Ind. Jan. 1, 2007), available at
http://www.clearinghouse.net/chDocs/public/PC-IN-0013-0002.pdf. For more information on the
case as a whole, see Mast v. Donahue, No. 2:05-cv-00037 (S.D. Ind.) at the Civil Rights
Litigation Clearinghouse, http://www.clearinghouse.net/detail.php?id=5554.
63

Of course, defendants in a civil rights suit asserting federal rights can remove that action to
federal court if they choose. See 28 U.S.C. § 1441(a) (authorizing defendants to remove from
state court to federal court “any civil action brought in a State court of which the district courts
of the United States have original jurisdiction”).

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performance of contracts, as well as state PLRA-analogues and more general deference to prison
administrators. 64 Moreover, as the district court noted in a New York City jail case, the burden
of starting over with a new judge, in a large-scale litigation, is far from small:
[I]t makes little sense that, if a perceived problem with compliance should arise,
short of seeking reinstatement of this action, plaintiffs can seek relief only in state
court under state law. In view of the time and effort I have spent on this case,
including countless hours discussing not only the substantive terms of the
Agreement but also its language, it would be a tremendous waste of resources for
the parties to have to go to state court to seek relief from a state court judge
wholly unfamiliar with the case. 65
Brill was unable in 2008 to find a single example of state enforcement of a federal prisoners’
rights settlement agreement. I, too, have found no such report, either using Westlaw, the Civil
Rights Litigation Clearinghouse, or word-of-mouth. (The closest near-exceptions were some
early failed attempts by prisoners, who countered termination of pre-PLRA decrees by arguing
that even if the PLRA rendered those decrees unenforceable in federal court after a termination
motion, they remained enforceable in state court as private contracts. They lost: the federal
courts found that the old decrees did not qualify as private settlement agreements and were fully
terminable under 18 U.S.C. § 3626(b) 66.)
III. Termination of Prospective Relief
Once prospective relief that complies with the PLRA’s constraints on entry is approved—
whether based on consent (with the types of stipulations discussed in Part II.A) or after
litigation—it becomes far more vulnerable to frequent challenge than other injunctions.
A. What the PLRA requires.
Under the PLRA:
In any civil action with respect to prison conditions in which prospective relief is
ordered, such relief shall be terminable upon the motion of any party or intervener
. . . 2 years after the date the court granted or approved the prospective relief [or]
1 year after the date the court has entered an order denying termination of
prospective relief under this paragraph. 67
64

Alison Brill, Note: Rights Without Remedy: The Myth of State Court Accessibility after the
Prison Litigation Reform Act, 30 CARDOZO L. REV. 645 (2008).
65

Ingles v. Toro, 438 F. Supp. 2d 203, 215–16 (S.D.N.Y. 2006).

66

See Benjamin v. Jacobson, 172 F.3d 144, 156-58 (2d Cir.) (en banc), cert. denied, 528 U.S.
824 (1999) (“We do not see any basis for inferring that Congress meant federal consent decrees
that are not based on [the required PLRA findings] to remain in effect and amenable to
enforcement in state courts.”); Hazen v. Reagan, 208 F.3d 697, 699 (8th Cir. 2000) (“We
therefore hold that the PLRA prohibits the state-court enforcement, on a contract theory or
otherwise, of federal consent decrees that do not meet the PLRA standards.”).
67

18 U.S.C. § 3626(b)(2).

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A motion for termination should be granted unless “the court makes written findings based on
the record that prospective relief remains necessary to correct a current and ongoing violation of
the Federal right, extends no further than necessary to correct the violation of the Federal right,
and that the prospective relief is narrowly drawn and the least intrusive means to correct the
violation.” 68 Thus the same need-narrowness-intrusiveness requirements for entry of new relief
apply to maintenance of existing relief, with the add-on requirements that the findings be written,
and based on a “current and ongoing” rights violation. In addition, a motion to terminate
prospective relief leads to an automatic stay of that relief after 30 days (postponable to 90 days
for good cause). 69
These statutory rules governing termination of an injunction are substantially more
defendant-friendly than the standards applicable to other areas of law. For both litigated and
consented injunctions, motions to modify or dissolve the injunction proceed under Federal Rule
of Civil Procedure 60(b), which provides, in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding for the
following reasons: ... (5) the judgment has been satisfied, released, or discharged,
or a prior judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have prospective
application; or (6) any other reason justifying relief from the operation of the
judgment. 70
The Supreme Court has explained that dissolution of an injunction, whether contested or
consented, is appropriate when the defendant has “complied in good faith with the . . . decree
since it was entered,” and “eliminated to the extent practicable” the “vestiges” of past
constitutional violations.71 In addition, while litigated decrees must be dissolved, under Rule
60(b), if the law changes to make legal what the injunction forbids, 72 consent decrees are more
stable. Modifications to consent decrees “should not strive to rewrite a consent decree so that it
conforms to the constitutional floor.” 73 Instead, while consent decree modification may be
“justified based on changes in either law or fact,” the Court has highlighted the importantance of
“preserv[ing] the finality of such agreements” and avoiding “disincentive[s] to negotiation of
settlements in institutional reform litigation.” 74
68

18 U.S.C. § 3626(b)(3).

69

18 U.S.C. § 3626(a)(2), (a)(3).

70

Fed. R. Civ. P. 60(b).

71

Bd. of Educ. of Oklahoma City Pub. Sch. v. Dowell, 498 U.S. 237, 249–50 (1991); see also
Freeman v. Pitts, 503 U.S. 467, 492 (1992).
72

See, e.g., Pennsylvania v. Wheeling & Belmont Bridge Company, 59 U.S. 421, 431–432
(1855) (If, in the meantime, since the decree, this right has been modified by the competent
authority . . . it is quite plain the decree of the Court cannot be enforced.”).
73

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 391 (1992).

74

Id. at 389.

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The point is that in areas outside the ambit of the PLRA, there is no prospect of annual
relitigation of the necessity of consent decrees. Defendants who want an injunction lifted
generally must establish that they have complied with that injunction, rather than arguing that,
irrespective of their compliance, there is no extant violation of the constitutional rights of the
plaintiffs. Frequent relitigation of the alleged violations underlying decrees can distract from
efforts to solve the problems that prompted the decree in the first place, pull plaintiffs’ counsel
from their monitoring tasks, and shrink the feasibility of solutions that take a more than a year to
implement.
B. How the prisoners’ rights bar has responded, and should respond.
Prior to the PLRA, I would estimate that there were hundreds of “orphan decrees”
applicable to jails and prisons around the county. These were decrees entered at some point,
presumably mostly in the 1970s and 1980s, which were no longer actively monitored or
enforced. 75 I worked on one such jail conditions case, against Jefferson County, Alabama, which
includes the jails in Birmingham and Bessemer Alabama. The matter had been litigated in the
1980s, by both private plaintiffs’ counsel and the United States, which sided with the plaintiffs.
But by the time a motion to terminate was filed in 1997, it had been years since either class
counsel or the Department of Justice had done any monitoring at all, much less sought to enforce
the aging decree. 76
This kind of neglect obviously undermines the prospects of compliance. Since passage of
the PLRA, it also renders the case highly susceptible to termination. After all, the statute
provides that defendants can seek an end of prospective relief at any point beginning two years
after such relief is entered. 77 And when a termination motion is filed, the plaintiffs have an
incredibly limited amount of time to marshall the evidence to oppose it, or suffer at least the
consequences of an automatic stay, and potentially more permanent loss. If plaintiffs’ counsel
are going to be able to fend off a motion to terminate they need to prepare for it well before it is
filed, and they need to remain prepared. In the Jefferson County jail case, it was a mad scramble
to arrange a jail tour and review the documents needed to oppose the termination motion. If the

75

I have written about such decrees in California jail litigation in particular. See Margo
Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. CIV.
RIGHTS/CIV. LIB. L. REV. 165, 215 (2013).
76

The case was Thomas v. Gloor, No. 77-P-0066-S (N.D. Ala., injunction entered Aug. 28,
1978). For a summary of the litigation and a few of the 1997 documents see Thomas v. Gloor,
No. 77-P-0066-S (N.D. Ala.), at the Civil Rights Litigation Clearinghouse,
http://www.clearinghouse.net/detail.php?id=11308.
77

Even if defendants agree not to seek termination, an intervenor might do so. See 18 U.S.C.
§3626(b)(1)(A) (“In any civil action with respect to prison conditions in which prospective relief
is ordered, such relief shall be terminable upon the motion of any party or intervener . . . .”).
Ordinary intervention rules apply: the PLRA’s statutory grant of broad intervention rights to
state and local officials governs only prisoner release orders. 18 U.S.C. § 3626(a)(3)(F).

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jail authorities had offered even slight resistance to discovery, the time likely would have been
insufficient. 78
In the years since passage of the PLRA, the prisoners’ rights bar has worked through
enough of these mad scrambles to develop some coping strategies. 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.
1. Lengthening the remedial period.
Systemic litigation occurs when there are serious and systemic problems. Those
problems take time to remedy, as settling defendants will often agree. Accordingly, prisoner
plaintiffs have sometimes succeeded in obtaining prison and jail officials’ agreement to change
the terms on which those officials may seek or obtain termination of a settlement. This kind of
agreement may be beneficial for defendants, as well, because it frees them for a time from
responding to plaintiffs’ litigation driven discovery requests.
Termination stipulations take a number of approaches. Sometimes, the parties opt out of
the PLRA’s termination provisions altogether, as in a settlement in the Albuquerque jail
litigation:
The Defendants will not file any motion in the future asserting that this Stipulated
Settlement should be terminated under the Prison Litigation Reform Act. 79
In other agreements the parties lengthen the period of time prior to a termination motion. For
example, in litigation by deaf or hard-of-hearing prisoners against the Washington State
Department of Corrections:
In order to give the provisions contained herein an opportunity to be implemented and
evaluated, both parties agree not to challenge this agreement for a period of four years. 80
78

Transcript of Termination Hearing, Thomas v. Gloor, No. 77-P-0066-S (N.D. Ala. Aug. 6,
1997), available at http://www.clearinghouse.net/chDocs/public/JC-AL-0022-0001.pdf. The
posture of this particular case was quirky: [T]he county and state were both defendants, and the
county benefitted from the decree’s requirement that the state promptly pick up sentenced
prisoners and transfer them from jail to prison. Accordingly it was in the county’s interest to
have the challenged decree remain operative.
79

Stipulated Settlement Agreement Between Plaintiffs and Defendants at 7, McClendon v.
City of Albuquerque, No. 6:95-cv-00024 (D.N.M. June 30, 2005), available at
http://chadmin.clearinghouse.net/chDocs/public/JC-NM-0002-0012.pdf.
80

Settlement Agreement at 5, Duffy v. Riveland, No. 2:92-cv-01596 (W.D. Wash. June 4,
1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-WA-0003-0004.pdf; see
also, e.g., Consent Order at 2, Duvall v. Glendening, No. 1:76-cv-01255 (D. Md. Aug. 22, 2002),
available at http://chadmin.clearinghouse.net/chDocs/public/PC-MD-0006-0003.pdf
(“Defendants have agreed that they will neither challenge nor otherwise seek to modify the terms
of this Order, without Plaintiffs’ consent, for a period of 14 months from date of entry.”).

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In still other decrees, the parties alter the terms on which termination can take place, agreeing to
a prerequisite of decree compliance. So, for example, in a case brought by the Prison Legal
News and joined by the U.S. Department of Justice against a South Carolina jail:
Defendants shall provide written notice to the Plaintiffs and the United States 30
days before filing any motion seeking to modify or terminate this Consent
Injunction. Defendants shall not provide such notice or file such motion until
they have achieved a minimum of one year of substantial compliance with the
provisions of this Consent Injunction. If Plaintiffs and the United States determine
that Defendants have achieved one year of substantial compliance with the
provisions of this Consent Injunction, Plaintiffs and the United States will not
oppose a motion filed by Defendants seeking to modify or terminate this Consent
Injunction. 81
Or, similarly, in California’s system-wide prison case by prisoners with developmental
disabilities:
Defendants may move to vacate this Settlement Agreement and dismiss the case
on the ground that they have substantially complied with the plan set forth in
Appendix A as modified for a period of three years. Plaintiffs may oppose the
motion, and shall have the burden of proving that defendants are not in substantial
compliance. 82
By imposing a default sunset period on jail and prison decrees, the PLRA’s termination
provisions strengthen the bargaining power of corrections officials. But, as the above quotations
demonstrate, there are still circumstances in which defendants agree to a different approach,
whether because they think a longer remediation period is better for its own sake, or because
they are able to trade the remedial term for something they care about more.
2. Gathering information.
Institutional reform remedies almost always include information collection provisions,
which are obviously crucial for monitoring compliance. But the PLRA makes fact-gathering
even more important, useful not just to pressure defendants into compliance but to oppose an
unwarranted motion to terminate. If information is sufficiently current and of the right
81

Consent Injunction at ¶ 56, PLN v. Berkeley County Sheriff, No. 2:10-cv-02594 (D.S.C.
Jan. 13, 2012), available at http://chadmin.clearinghouse.net/chDocs/public/JC-SC-00030002.pdf.
82

Settlement Agreement and Order at 7-8, Clark v. State of California, No. 3:96-cv-0186
(N.D. Cal. July 20, 1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA0005-0002.pdf; see also, e.g., Stipulation for Injunctive Relief at ¶ 261, Fussell v. Wilkinson,
No. 1:03-cv-00704 (S.D. Ohio May 21, 2008), available at
http://chadmin.clearinghouse.net/chDocs/public/PC-OH-0020-0008.pdf (“Oversight by the
Monitor shall continue for five (5) years following the entry of this Stipulation unless sooner
terminated on motion to the Court by the Defendants, and a finding is made by the Court
following a determination on that issue by the Monitor, that substantial compliance has been
achieved on all terms and been maintained for a period of two years in all areas.”).

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provenance, 83 sometimes it can itself be introduced in court. But even if not, keeping up to date
about what’s going on inside the jail or prison can help plaintiffs’ counsel prioritize post-motion
discovery relating to issues in the challenged injunction that remain problems. A number of
methods are helpful, bringing together discovery leads, site inspections, document production,
and client contact. It’s worth quoting at length some decrees that use these methods. (The Civil
Rights Litigation Clearinghouse collects post-PLRA enforceable decrees, 84 many of which have
terms like the ones repeated here.)
One consent decree was negotiated after the district court entered a preliminary
injunction based on plaintiffs’ proof of widespread constitutional violations at the Morgan
County Jail, in Alabama. 85 The decree provided, in part:
38. To ensure compliance with this agreement, County Defendants shall provide
to Plaintiffs’ counsel each month a complete and up-to-date census of the Jail
population that lists inmates by location, status (awaiting trial, state convicted, or
county convicted), all criminal charges, and length of confinement. County
Defendants shall also provide to Plaintiffs’ counsel on a quarterly basis a
complete and up-to-date security staffing report that includes staff names and
assignments.
39. On a monthly basis for the first year after the effective date of this order, and
on a quarterly basis thereafter, County Defendants shall provide to Plaintiffs’
Counsel the physician sick call schedule for the previous month, including the
name of each physician who worked, the actual days he or she was present at the
Jail, the actual number of hours he or she spent at the Jail on each of these days,
and how many patients he or she treated on each of these days. County
Defendants shall provide this information with regard to on-site visits by the
psychiatrist and psychiatric social worker and any other specialist who provides
care on-site at the Jail, as well. The nursing schedule for the previous month,
including the name of each nurse who worked, his or her qualifications (i.e., RN),
the days and hours he or she actually worked, and the number of patients he or
she saw on each day worked.
In both ¶¶ 38 and 39, the requirement of lists of names and locations serves several functions: it
reveals compliance problems where they exist; makes compliance reporting less impressionistic
83

The PLRA uses the word “current.” This means at the time the termination motion is made.
An “instantaneous snapshot . . . is impossible,” Lancaster v. Tilton, No. 79-1630, 2007 WL
4570185, *5 (N.D.Cal. Dec. 21, 2007), but the record must be recent. Compare id. (record made
over previous 13 months is adequate), with United States v. Territory of the Virgin Islands, 884
F. Supp. 2d 399, 418–19 (D.V.I. 2012) (five-year-old findings “too dated,” although “if properly
updated by current findings, [they] could serve as an appropriate factual foundation”).
84

See http://www.clearinghouse.net/results.php?searchSpecialCollection=28.

85

Maynor v. Morgan County, Alabama, 147 F. Supp. 2d 1185 (2001). For information on the
case as a whole, see Maynor v. Morgan County, Alabama, No. 5:01-cv-00851 (N.D. Ala.), at the
Civil Rights Litigation Clearinghouse, http://www.clearinghouse.net/detail.php?id=10041.

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and more likely to be accurate, which itself pressures the defendants to more comprehensive
compliance; and it provides names of potential interviewees.
The decree continues:
40. Plaintiffs’ counsel shall have reasonable access to Jail records, Jail inmates,
and the Jail facility, including escorted, unannounced walk-through visits of the
Jail on a quarterly basis during the first year following the entry of this Consent
Decree, and twice a year thereafter. Paralegals working directly with Plaintiffs’
counsel shall have reasonable access to Jail inmates and will be accompanied by
an attorney during any walk-through of the Jail. Class counsel and their paralegals
may bring experts at their own expense on such walk-through visits. Should class
counselor their paralegals bring a medical expert, the medical expert shall have
access to all medical records and charts kept or created by the Jail. This Consent
Decree does not prevent County Defendants from changing the medical providers
who provide services at the Jail. 86
This provision allows plaintiffs’ counsel to maintain a good working knowledge of what is going
on at the jail, and also to maintain relationships with their clients. This last is particularly useful
because of an all-too-common feature of large-scale injunctive litigation, and particularly
litigation involving closed facilities like jails and prisons—the palpable separation between the
plaintiff class and their lawyers. There are many methods to bridge this gap: frequent visits and
consultations, plaintiffs’ committees, and the like. And there are many reasons for plaintiffs’
counsel to make the effort. Most relevant here is that even if prisoners’ information about
conditions at their prison is not entirely accurate, it is probably far more detailed than their
lawyers can easily get by other methods. At least sometimes, prisoners can tell their lawyers
whether noncompliance with a particular injunctive provision is common or rare and can identify
particular incidents that might be fruitful to further investigate.
A George jail decree in a case brought by the United States took a different approach to
compliance monitoring, requiring reporting not of the raw facts of compliance, but of the
initiatives undertaken, although underlying documentation is also required to be maintained:
51. Defendants shall submit quarterly compliance reports to the United States and
the Court, the first of which shall be submitted within sixty (60) days after the
entry of this Decree. Thereafter, the reports shall be submitted fifteen (15) days
after the termination of each quarter continuing until the Decree is terminated.
The reports shall describe the actions the Defendants have taken during the
reporting period to implement this Decree and shall make specific reference to the
Decree provisions being implemented.
52. Defendants shall keep such records as will fully document that the
requirements of this Decree are being properly implemented and shall make such

86

Consent Decree Applicable to the Plaintiff Class and the County Defendants at ¶ 40,
Maynor v. Morgan County, Alabama, No. 5:01-cv-00851 (N.D. Ala. Sept. 25, 2001), available at
http://chadmin.clearinghouse.net/chDocs/public/JC-AL-0020-0002.pdf.

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records available at the Jail at all reasonable times for inspection and copying by
the United States.
53. Defendants shall submit records or other documents to verify that they have
taken such actions as described in their compliance reports and will also provide
all documents reasonably requested by the United States. As part of this
compliance process, documents submitted shall include a daily population count
for the Jail, a separate count of the number of inmates in each cell or dorm, and
staffing levels. . . .
55. During the period in which the Court maintains jurisdiction over this action,
the United States and its attorneys, consultants, and agents shall have unrestricted
access to the Jail, Jail inmates, Jail staff, and documents as necessary to address
issues affected by this Decree. The United States’ unrestricted access shall not
conflict with the orderly operation of the Jail. Nothing in this Decree prohibits
discovery pursuant to the Federal Rules of Civil Procedure. 87
And for one of the (mammoth) systemwide California prison cases, plaintiffs’ counsel
essentially combined both approaches:
11. Monitoring and Access to Information. Defendants shall provide plaintiffs’
counsel with reasonable access to information sufficient to monitor defendants’
compliance with their plan. Access to such information shall be provided in the
ordinary course of business from the date this Settlement Agreement is approved
by the Court. Such information shall include, but is not limited to, the following
documents:
a. A monthly report of the identity and location of all identified members of
the plaintiff class;
b. The complete medical, psychiatric and non-confidential central files of the
plaintiff class;
c. All internal reviews or audits of defendants’ plan and programs;
d. All budget change proposals to implement defendants’ plan or programs;
e. All evaluations of whether prisoners are developmentally disabled;
f. All analyses and reports concerning the reliability of defendants’ screening
instruments; and
g. Documents maintained at individual institutions that are relevant to
assessing the state of defendants’ compliance.
12. Plaintiffs shall be able to conduct 33 tours of institutions housing members of
the plaintiff class per year (including multiple tours of the same institutions), with
or without their exper consultants. Such tours shall include access to institutional

87

Consent Decree at ¶ 51-53, 55, U.S. v. Clay County, No. 4:97-cv-00151 (M.D. Ga. Aug.
19, 1997), available at http://chadmin.clearinghouse.net/chDocs/public/JC-GA-0010-0004.pdf.

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programs and classification and disciplinary hearings, housing facilities,
recreational yards, and all other areas of the institution normally used by inmates.
Defendants shall make available for interview departmental, custodial, clinical
and program staff that have responsibility for the care, treatment, safety,
classification, housing, discipline and programming of class members. Plaintiffs’
counsel shall be able to have brief discussions with inmates during the tours and
shall be able to provide prison staff with counsel’s name and address for
distribution to specific inmates. Defendants also shall provide plaintiffs’ counsel
access to confidential interviews with inmates before or after the tours, as
arranged among counsel, during regular business hours without regard to regular
visiting hours and days. Plaintiffs reserve their right to seek to depose
departmental, custodial, clinical, and program staff members 88
Yet another tack is to develop a procedure for independent or shared development of
facts, which are then available for use in a termination proceeding. This might be done by a
court-approved monitor, a panel of experts, or some other entity. So in an Idaho jail case:
114. The parties agree that an inspection of the existing Bonneville County Jail
will be conducted by an independent inspector (preferably the Idaho Sheriffs’
Association Inspection Team—if they will agree to conduct such inspection and
provide a report of their findings) approximately three (3) and six (6) months after
the effective date of this Consent Decree to verify compliance with the
agreements set forth herein.
115. In the event that either of the parties desires verification of any information
pertinent to this Decree during the term of this Decree, counsel for the parties
agree to attempt to develop the necessary information, and if necessary, to select
an expert, or other qualified individual, who shall be permitted to make the
necessary inspections and provide the parties and the Court with information
necessary to resolve any questions relevant to this Consent Decree, Order and
Judgment. 89
Of course monitoring has always been a feature of institutional reform litigation. My point here
is that use of a monitor, expert panel, or other non-party inspector can give plaintiffs the ability
to respond to a termination motion within the tight statutory time frame.

88

Interim Agreement and Stipulation at ¶ 11-12, Clark v. California, No. 3:96-cv-01486
(N.D. Cal. July 20, 1998), available at http://chadmin.clearinghouse.net/chDocs/public/PC-CA0005-0002.pdf.
89

Consent Decree, Order and Judgment at ¶ 114-15, Makinson v. Bonneville County, No.
4:97-cv-00190 (D. Idaho Apr. 30, 1997), available at
http://chadmin.clearinghouse.net/chDocs/public/JC-ID-0002-0001.pdf; see also Consent Decree,
Order and Judgment, Davis v. Canyon County, No. 1:09-cv-00107 (D. Idaho Nov. 12, 2009),
available at http://chadmin.clearinghouse.net/chDocs/public/JC-ID-0005-0004.pdf.

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CONCLUSION
Post-PLRA jail and prison litigation procedures tilt sharply in favor of defendants, the
officials who run the nation’s correctional facilities. The substantive law, too, is far from
prisoner-friendly90 (although this is well beyond the scope of this short paper). It remains
possible, however, for the courts to remain a forum in which some necessary prison reform can
take place. The many consent decree provisions quoted in this paper or cited in its footnotes—
and the hundreds more available at the Civil Rights Litigation Clearinghouse—offer a library of
options to litigants in prison and jail cases affected by the PLRA. More theoretically, they
demonstrate that litigation tactics and procedures are dynamic—that rule changes affect the
parties’ bargaining positions, but rarely eliminate bargaining altogether.

90

Consider, for example, the holdings in Wilson v. Seiter, 501 U.S. 294 (1991), and Whitley
v. Albers, 475 U.S. 312, 320-21 (1986). In the first, the Court held that the Eighth Amendment’s
Cruel and Unusual Punishment Clause is violated by harmful prison conditions only if prison
officials have a “culpable state of mind.” Even egregious mistreatment or neglect can pass
constitutional muster if it is merely negligent, and not “deliberately indifferent.” And in the
second, the Court held that uses of force in prison constitute Cruel and Unusual Punishment only
if “force was applied . . . maliciously and sadistically for the very purpose of causing harm.”

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Technical Appendix

A. Federal court filings (Table 1 & Figure A)
All filing and outcome figures in this Article are derived from data by the Administrative Office
of the U.S. Courts and cleaned up by the Federal Judicial Center, the research arm of the federal
court system. These data include each and every case “terminated” (that is, ended, at least
provisionally) by the federal district courts since 1970. The Federal Judicial Center also
publishes periodic reports on the data. My figures are not from these written reports, but are
instead based on my compilation and manipulation of the raw data to eliminate duplicates,
remands, etc. The Federal Judicial Center lodges this database for public access with the Interuniversity Consortium for Political and Social Research, which maintains it at
http://www.icpsr.umich.edu. I used the following datasets, pulling the “civil terminations” data
from each. For more detail and replication code see {CITE TO ON-LINE APPENDIX}.
Unfortunately I am unable to post actual data, because the Bureau of Justice Statistics has
instructed the ICPSR that the data be available only for restricted use.
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 1970–2000, ICPSR Study
No. 8429 (last updated Apr. 25, 2002).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2001, ICPSR Study No.
3415 (last updated June 19, 2002).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2002, ICPSR Study No.
4059 (last updated Oct. 8, 2004).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2003, ICPSR Study No.
4026 (last updated June 17, 2004).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2004, ICPSR Study No.
4348 (last updated Nov. 4, 2005).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2005, ICPSR Study No.
4382 (last updated Mar. 17, 2006).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2006, ICPSR Study No.
4685 (last updated Mar. 15, 2007).
Federal Judicial Center, Federal Court Cases: Integrated Database, 2007, ICPSR Study No.
22300 (last updated June 18, 2008).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2008, ICPSR Study No.
25002 (last updated June 29, 2009).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2009, ICPSR Study No.
29661 (last updated Nov. 26, 2012).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2010, ICPSR Study No.
30401 (last updated Nov. 26, 2012).
Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2011, ICPSR Study No.
33622 (last updated Jan. 8, 2013).

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Federal Judicial Center, Federal Court Cases: Integrated Data Base, 2012, ICPSR Study No.
34881 (last updated Mar. 18, 2014).
Federal Judicial Center, Federal Court Cases: Integrated Data Base Appellate and Civil Pending
Data, 2012, ICPSR 29281 (last updated Mar. 19, 2014) (I used this data for pending civil cases).
B. Prison Population (Table 1 & Figure A)
1970: Year-end state prison population. See U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND
FEDERAL INSTITUTIONS: 1968–1970, NAT’L PRISONER STATISTICS BULL., Apr. 1972, at 22
tbl.10c.
1971 to 1974: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON
DECEMBER 31, 1974, NAT’L PRISONER STATISTICS BULL., June 1976, at 14 tbl.1.
1975: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON DECEMBER
31, 1975, NAT’L PRISONER STATISTICS BULL., Feb. 1977, at 36 app. 2, tbl.1.
1976: U.S. DEP’T OF JUSTICE, PRISONERS IN STATE AND FEDERAL INSTITUTIONS ON DECEMBER
31, 1977, NAT’L PRISONER STATISTICS BULL., Feb. 1979, at 10 tbl.1.
1977 to 1998: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISONERS IN CUSTODY
OF STATE OR FEDERAL CORRECTIONAL AUTHORITIES (2000), no longer available from the Bureau
of Justice Statistics, but posted at {NEED TO POST THIS: IT’S corpop05.wk1}. Inmates in
custody of state or federal correctional facilities, excluding private prison facilities, December
31, 1978-2012, http://www.bjs.gov/index.cfm?ty=nps;
http://www.bjs.gov/nps/resources/documents/QT_custnopriv_tot.xlsx. {NEED TO FIGURE
OUT WHICH PARTS OF WHICH I ENDED UP USING}
1999-2012: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, Inmates in custody of state
or federal correctional facilities, including private prison facilities, December 31, 1999-2012,
http://www.bjs.gov/index.cfm?ty=nps;
http://www.bjs.gov/nps/resources/documents/QT_custwpriv_tot.xlsx.
C. Jail Population (Table 1 & Figure A)
1970: Mid-year jail population. LAW ENFORCEMENT ASSISTANCE ADMIN., U.S. DEP’T OF
JUSTICE, NATIONAL JAIL CENSUS 1970, at 10 tbl.2 (1971).
1971 to 1977: Jail population data are not available. I have assumed a jail population of 160,000
in each of these years, based on the figures in 1970 and 1978.
1978: {???}
1979: Jail population data are not available. I have assumed a jail population of 170,000, based
on the figures in 1978.
1980-2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES (2002), available at
http://www.ojp.usdoj.gov/bjs/glance/sheets/corr2.wk1. {THIS IS NOW MYSTERIOUS TO
ME}
1982: BUREAU OF JUSTICE STATISTICS BULLETIN, JAIL INMATES 1982 (February 1983, NCJ87161), available at http://www.bjs.gov/content/pub/pdf/ji82.pdf.

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1983, 1986, 1987: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1987, at 6 (Dec. 1989, NCJ-118762), available at
http://www.bjs.gov/content/pub/pdf/cpus87.pdf. {What about 1984, 1985}
1984, 1985: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1985, at 9 (Dec. 1987, NCJ-103957), available at
http://www.bjs.gov/content/pub/pdf/cpus85.pdf. {Did we use this?}
1978, 1983, 1988, and 1993: see BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JAIL
INMATES, BY SEX, HELD IN LOCAL JAILS (1997), available at
http://www.ojp.usdoj.gov/bjs/data/corpop09.wk1. {No longer available there, but I have it}
1988, 1989: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1989, at 5, 8 (October 1991, NCJ-l30445), available at
http://www.bjs.gov/content/pub/pdf/cpus89.pdf.
1990-1996: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1996, at 20 (April 1999, NCJ 170013), available at
http://www.bjs.gov/content/pub/pdf/cpius96.pdf.
1997-1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1999, at {} ({DATE}, NCJ {}), on file with author.
2000-2011: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, Mortality in Local Jails and
State Prisons, 2000-2011 – Statistical Tables, at 17 (Aug. 2013, NCJ 242186), available at
http://www.bjs.gov/content/pub/pdf/mljsp0011.pdf. (Downloadable at
http://www.bjs.gov/content/pub/sheets/mljsp0011.zip).
D. Nationwide and state-by-state population (Table 1 and Figure A)
2000-2009 : U.S. Census Bureau, Annual Estimates of the Resident Population for the United
States, Regions, States, and Puerto Rico: April 1, 2000 to July 1, 2009, available at:
https://www.census.gov/popest/data/historical/2000s/vintage_2009/
(https://www.census.gov/popest/data/state/totals/2009/tables/NST-EST2009-01.xls)
2010-2012: U.S. Census Bureau, Population, Population Change, and Estimated Components of
Population Change: April 1, 2010 to July 1, 2012, available at
http://www.census.gov/popest/data/national/totals/2012/
(http://www.census.gov/popest/data/national/totals/2012/files/NST_EST2012_ALLDATA.csv)
E. Prison Censuses (Table 2)
1984: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE ADULT
CORRECTIONAL FACILITIES, 1984, ICPSR Study No. 8444 (last updated Apr. 22, 1997). See also
http://www.bjs.gov/content/pub/pdf/csacf84.pdf.
1990: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 1990, ICPSR Study No. 9908 (last updated Dec. 21, 2001).
See also http://www.bjs.gov/content/pub/pdf/csfcf90.pdf.
1995: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 1995, ICPSR Study No. 6953 (last updated Apr. 20, 1998).
See also http://www.bjs.gov/content/pub/pdf/Csfcf95.pdf.

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2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 2000, ICPSR STUDY NO. 4021 (last updated July 9, 2004).
See also http://www.bjs.gov/content/pub/pdf/csfcf00.pdf.
2005: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 2005, ICPSR STUDY NO. 24642 (last updated Oct. 5, 2010).
See also http://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
F. Jail Censuses (Table 2)
1983: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1983,
ICPSR Study No. 8203 (last updated Feb. 13, 1997). See also
http://www.bjs.gov/content/pub/pdf/clj83-vol1.pdf, http://www.bjs.gov/content/pub/pdf/clj83vol2.pdf, http://www.bjs.gov/content/pub/pdf/clj83-vol3.pdf,
http://www.bjs.gov/content/pub/pdf/clj83-vol4.pdf, http://www.bjs.gov/content/pub/pdf/clj83vol5.pdf.
1988: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1988,
ICPSR Study No. 9256 (last updated June 24, 1997). See also
http://www.bjs.gov/content/pub/pdf/clj88-vol1.pdf,
http://www.bjs.gov/content/pub/pdf/clj88.pdf.
1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1993,
ICPSR Study No. 6648 (last updated July 13, 1996).
1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1999.
ICPSR Study No. 3318 (last updated Aug. 16, 2002). See also
http://www.bjs.gov/content/pub/pdf/cj99.pdf.
2006: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF JAIL FACILITIES, 2006.
ICPSR Study No. 26602 (last updated Jan. 6, 2010). See also
http://www.bjs.gov/content/pub/pdf/cjf06.pdf.

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