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CIVIL RIGHTS INJUNCTIONS OVER TIME:
A CASE STUDY OF JAIL AND PRISON
COURT ORDERS
MARGO SCHLANGER*
Lawyers obtained the first federal court orders governing prison and jail conditions
in the 1960s. This and other types of civil rights injunctive practice flourished in the
1970s and early 1980s. But a conventional wisdom has developed that such institutional reform litigation peaked long ago and is now moribund. This Article’s longitudinal account of jail and prison court-order litigation establishes that, to the
contrary, correctional court-order litigation did not decline in the late 1980s and
early 1990s. Rather, there was essential continuity from the early 1980s until 1996,
when enactment of the Prison Litigation Reform Act (PLRA) reduced both the
stock of old court orders and the flow of new court orders. Even today, ten years
after passage of the PLRA, the civil rights injunction is more alive in the prison and
jail setting than the conventional wisdom recognizes. Yet while the volume of
court-order litigation had, prior to 1996, remained stable, the nature of court-order
practice changed from a “kitchen sink” model to something much more precise.
Where in the 1970s litigation tended to be broad in scope, with loose standards of
causation and sweeping remedies, through the 1980s and 1990s litigation grew ever
more resource-intensive, and addressed increasingly narrow topics with more rigorous proof and causation requirements. This Article argues that this change was
caused not only by the increasing conservativism of the federal bench, but more
interestingly by a generalized skepticism about issues of causation in law, the
increased presence of large pro bono firms accustomed to a resource-intensive
mode of litigation, and the salience of several extraordinarily extensive litigations as
models.
* Copyright  2006 by Margo Schlanger. Professor of Law, Washington University in
St. Louis. Thanks for comments and ideas to participants in the 2004 Cornell Law School
Junior Empirical Legal Scholars conference and in a Washington University in St. Louis
faculty workshop, to Susan Appleton, Tomiko Brown-Nagin, Steve Burbank, Tracey
George, Jim Jacobs, Laura Rosenbury, Peter Schuck, my colleagues of the Washington
University Workshop on Empirical Research in Law (especially Andrew Martin and
Kathie Barnes for statistics assistance), and, as always, to Sam Bagenstos.
I also want to thank the dozens of people who have shared their time and thoughts
with me, some over several years, as I worked on the large project that includes this
Article. The informants particularly helpful for this piece were: Elizabeth Alexander,
Director, ACLU National Prison Project; John Boston, Director, Prisoners’ Rights Project
of the Legal Aid Society of New York; Alvin Bronstein, founder and former Director,
ACLU National Prison Project; Donna Brorby, former plaintiffs’ counsel, Ruiz v. Estelle;
Steven Kelban, Director, Andrus Family Fund; Steve J. Martin, former general counsel,
Texas Department of Corrections and frequent expert witness and court monitor in jail and
prison cases; Vincent M. Nathan, frequent special master in jail and prison cases; and Don
Specter, Director, Prison Law Office (San Quentin, Cal.). Many additional interviews,
which have colored my views in significant ways, are listed in Margo Schlanger, Inmate
Litigation, 116 HARV. L. REV. 1555 (2003).
All remaining errors are, of course, my responsibility.
550

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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. HISTORY AND COMMENTARY . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Early History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. The Purported Fading of the Structural Reform
Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Revisionism: Reports of the Death of the Structural
Reform Injunction Are Greatly Exaggerated . . . . . . . .
II. COURT-ORDER REGULATION OF JAILS AND PRISONS
OVER TIME . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. The Correctional Censuses . . . . . . . . . . . . . . . . . . . . . . . . . .
B. State-by-State Changes over Time . . . . . . . . . . . . . . . . . . .
C. Nationwide Statistics on the Volume of Court-Order
Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The Increasing Role of Outliers . . . . . . . . . . . . . . . . .
2. The Size Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. New and Old Regulation . . . . . . . . . . . . . . . . . . . . . . . .
D. Explanations for the Mid- to Late-1990s Shift in the
Volume of Court-Order Regulation . . . . . . . . . . . . . . . . .
1. The PLRA and the Declining Volume of CourtOrder Regulation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. Increasing Conservativism of the Federal Bench .
3. The Changing Law of Injunctions . . . . . . . . . . . . . .
4. Declining Funding For Inmates’ Advocates . . . . .
III. THE CHANGING NATURE OF COURT-ORDERED
RELIEF . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Number of Topics . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Explaining the Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. The 1970s: Pugh v. Locke . . . . . . . . . . . . . . . . . . . . . .
2. Bell v. Wolfish, Rhodes v. Chapman, and the
Supreme Court’s General Reining in of Public
Law Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. 1980s Factors: The Rightward Shift Among
Federal Judges; Increasing Causal Skepticism;
Ruiz v. Estelle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. 1990s Factors: Wilson v. Seiter, Expenses, and
Pro Bono Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Changing Conditions? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Jails . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E. Possible Changes in the Nature of the Regulation:
An Agenda for Future Research . . . . . . . . . . . . . . . . . . . .
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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INTRODUCTION
Modern civil rights injunctive practice turned fifty last year. It
was in 1955 that the Supreme Court, in its second opinion in Brown v.
Board of Education, instructed four federal district courts “to take
such proceedings and enter such orders and decrees consistent with
this opinion as are necessary and proper to admit to public schools on
a racially nondiscriminatory basis with all deliberate speed the parties
to these cases.”1 It was, in ways so many have noticed, an ignoble
beginning: Ongoing jurisdiction in the district courts stemmed
directly from the Court’s reluctance to take the desegregation bull by
the horns, a reluctance that had devastating implications for both cessation and remediation of Jim Crow injuries.2
Yet the procedural choice the Supreme Court made in Brown II
was also one that held out tremendous promise. Brown II authorized
district judges to assess the need for, order, and oversee sweeping
changes not only to schools but to the full range of important governmental institutions. The federal courts’ own decentralization made it
possible for them to individuate application of law to fact and to enter
injunctions tailored to address particular or even unique circumstances, institution by institution. If there were lawyers to bring the
cases, the wide dispersion of offending governmental structures would
not pose a barrier to racial reform. And once those lawyers began to
see real success in the task of desegregating American governmental
structures,3 they (and others, of course, but the overlap is important)
expanded their ambitions to encompass other kinds of reform as well.
They began to bring—and win or settle—cases from a variety of settings. Of particular interest here, civil rights lawyers were successful
in obtaining the first federal court orders governing general prison
and jail conditions in the early 1970s.4
1

349 U.S. 294, 301 (1955).
See generally JENNIFER L. HOCHSCHILD, THE NEW AMERICAN DILEMMA: LIBERAL
DEMOCRACY AND SCHOOL DESEGREGATION (1984) (arguing that more forceful, less
“deliberate” remedial measures would have integrated public schools more effectively);
J.W. PELTASON, FIFTY-EIGHT LONELY MEN: SOUTHERN FEDERAL JUDGES AND SCHOOL
DESEGREGATION (1961) (describing difficult task of district judges who attempted to
desegregate southern schools with only nominal backing of Supreme Court).
3 Progress was slow and did not begin in earnest until passage of the Civil Rights Act
of 1964, but at long last in the late 1960s, desegregation began to make real inroads. See,
e.g., GARY ORFIELD, THE RECONSTRUCTION OF SOUTHERN EDUCATION: THE SCHOOLS
AND THE 1964 CIVIL RIGHTS ACT (1969) (describing increasing integration in public
schools beginning in late 1960s); HOCHSCHILD, supra note 2, at 26–31 (same).
4 For example, court orders reformed jails and prisons in the following cases: Holt v.
Sarver, 300 F. Supp. 825, 828 (E.D. Ark. 1969); Holt v. Sarver, 309 F. Supp. 362, 365–66
(E.D. Ark. 1970) (Arkansas prison litigation), aff’d, 442 F.2d 304 (8th Cir. 1971);
Brenneman v. Madigan, 343 F. Supp. 128, 133 (N.D. Cal. 1972) (discussing preliminary
2

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The conventional wisdom that has developed declares this history
essentially closed; institutional reform litigation is, as many see it,
“something that is over and done with.”5 If this were so, the topic
nonetheless might merit examination, but its interest would by now be
primarily historical, or maybe sentimental. I establish in this Article
that the conventional wisdom is not true. In a previous essay in 1999,
I began critical examination of the conventional story told about past
and present civil rights injunctive litigation. Looking at prison and jail
court orders in particular, but suggesting that these shed light on other
flavors of institutional reform cases, I argued that the orders themselves have always been less the result of heroic judging6—the main
interest of most theorists of structural reform litigation—than of a
process in which prison and jail administrators, state and local
counsel, prisoners’ rights lawyers, inmates, and judges all play crucial
roles.7 Accordingly, the increasing conservativism of the federal
bench has not been as devastating to civil rights injunctive practice as
a more jurocentric view might predict. And I suggested that, indeed,
court-order litigation about jails and prisons is not a relic but a
continuing legal practice.8 More broadly, I submitted (though I did
not develop) that in area after area of public law, litigation practice
has refused to conform to the account of decline. Not only have old
cases retained their important policy influence, but new cases continue
to be filed and new orders entered, both by consent of the parties and
order of 1971 in Alameda County, California jail litigation); Rhem v. McGrath, 326 F.
Supp. 681, 682, 691 (S.D.N.Y. 1971) (Manhattan jail litigation); Jones v. Wittenberg, 323 F.
Supp. 93, 95, 100 (N.D. Ohio 1971) (litigation regarding Lucas County Jail in Toledo,
Ohio), aff’d sub nom. Jones v. Metzger, 456 F.2d 854 (6th Cir. 1972); Taylor v. Perini, 413
F. Supp. 189, 194–97 (N.D. Ohio 1976) (Ohio prison litigation reprinting 1972 order);
Inmates of Suffolk County Jail v. Eisenstadt, 360 F. Supp. 676, 690 (D. Mass. 1973), aff’d,
494 F.2d 1196 (1st Cir. 1974) (Suffolk County (Boston), Massachusetts jail litigation);
Battle v. Anderson, 376 F. Supp. 402, 407, 420 (E.D. Okla. 1974) (Oklahoma prison litigation). For a list of more limited but earlier jail and prison orders see notes 24 & 27 infra.
For a description of some of the differences between jails and prisons, see text accompanying notes 87–89 infra.
5 ROSS SANDLER & DAVID SCHOENBROD, DEMOCRACY BY DECREE: WHAT HAPPENS
WHEN COURTS RUN GOVERNMENT 10 (2003) (referring to belief of other legal scholars).
6 Cf. OWEN M. FISS, THE CIVIL RIGHTS INJUNCTION 90 (1978).
7 Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation, 97 MICH. L. REV. 1994, 2009–30 (1999) [hereinafter Schlanger, Beyond the Hero
Judge]; see also David Zaring, National Rulemaking Through Trial Courts: The Big Case
and Institutional Reform, 51 UCLA L. REV. 1015, 1021 (2004) (dividing commentators on
institutional reform litigation into “unilateralists” who focus on judges and “multilateralists” who look at other participants as well). For discussion of the quite different dynamics
of inmate damage actions, see Margo Schlanger, Inmate Litigation, 116 HARV. L. REV.
1555 (2003) [hereinafter Schlanger, Inmate Litigation].
8 Schlanger, Beyond the Hero Judge, supra note 7, at 2032–33.

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after litigation. New arenas of litigation have emerged, following their
own trajectories and generating their own topic-specific literature.9
This Article more definitively refutes the conventional wisdom.
It presents a longitudinal account of court-order litigation involving
jails and prisons, and addresses that litigation’s life cycle in detail.
Examining evidence from the early 1980s to the present, I analyze the
changing incidence and nature of prison and jail court orders. Using
both systematic data and more qualitative evidence, I establish that, at
least as to correctional court orders, the claim that there was a decline
in the reach of court-order regulation in the 1980s and 1990s is simply
wrong. In both jails and prisons, as of the mid-1990s, new court orders
continued to be entered all over the country, and old orders continued
to regulate many conditions of jail and prison life. Rather than a
1980s to 1990s decline, we see a long-standing plateau. Thus the conventional story of the demise of public law injunctions in the 1980s
misses the continuing strength of injunctive practice during that time.
(I would speculate that the situation is similar in other types of civil
rights injunctive litigation, as well.)
In 1996, however, Congress intervened. The Prison Litigation
Reform Act (PLRA)10 made old correctional court orders harder for
plaintiffs’ counsel to sustain and new ones harder to obtain. The conventional wisdom that court-order practice was on its last legs in the
mid-1990s would suggest that the PLRA’s impact has been small,
because its target had already been so diminished. Indeed, several
scholars have expressed this view.11 But this Article demonstrates
that, to the contrary, the 1996 congressional intervention of the PLRA
significantly constrained correctional court-order practice. I further
demonstrate that competing explanations likely cannot account for
the decline in jail and prison court orders indicated in the U.S.
Department of Justice’s 1999 and 2000 correctional censuses.
Still, even after the PLRA’s full implementation, I do not propose (and the data do not support) that the PLRA has shut down
correctional court-order practice. Although the PLRA has decreased
both the stock and flow of orders, it has by no means eliminated them.
Just as before, prison and jail court orders continue to be sought and
entered. Even today, ten years after passage of the PLRA, the civil
rights injunction is more alive in the prison and jail setting than the
9

See id. at 2034–35 (listing areas of ongoing court-ordered reform).
Pub. L. No. 104-134, §§ 801–10, 110 Stat. 1321, 1321-66 to 1321-77 (1996) (codified at
11 U.S.C. § 523 (2000); 18 U.S.C. §§ 3624, 3626 (2000); 28 U.S.C. §§ 1346, 1915, 1915A,
1932 (2000); 42 U.S.C. §§ 1997a–1997h (2000)). The PLRA was part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 110 Stat. 1321.
11 See infra notes 62–63 and accompanying text.
10

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conventional wisdom recognizes. And by implication, in arenas in
which no such congressional intervention has occurred, one might
expect to see still more continuity between court-order practice now
and in the 1980s.
Several other revisionist accounts have similarly suggested that
structural reform litigation flourished in the 1990s and (putting the
PLRA to one side) continues to thrive today. They have gone further,
however, and argued that injunctive litigation today remains very similar to that of the 1970s. This revisionist story too is incorrect, at least
for correctional court orders. The conventional view that court-order
practice has died on the vine, though wrong (as the revisionists and I
agree), came from somewhere. It may have been founded in part in
academic fashion; the fading novelty of court-order regulation made it
less attractive for articles, less noteworthy when it occurred, and so
on. But there was an important real shift as well. Although, in prison
and jail court orders, the 1980s and early 1990s did not see a decline in
the incidence of regulation via order, there was in that time a transformation in civil rights injunctive practice from what might fairly be
described as a “kitchen sink” model to something much more precise.
I demonstrate this shift in prison orders, and suggest that it occurred
less as a result of a top-down Supreme Court doctrinal diktat than of
more diffuse forces. In addition to the obvious increasing conservativism of the federal bench, these included: increasing general skepticism about claims of causation; the increasing prevalence of large pro
bono firms in the cases; and the salience, as models, of a handful of
cases in which the litigation was extraordinarily comprehensive.
These trends predate the PLRA.
In sum, I argue that contrary to prior accounts, correctional
injunctive practice did not die over the 1980s and 1990s but was rather
transformed. In its new form, however, injunctive practice continued
to flourish. In 1996, the PLRA shocked this stable system, causing a
significant reduction in the volume of both new and old court-order
regulation. There has not been any further notable shift in the nature
of injunctive practice.
At the end of the day, the civil rights injunction remains stronger
than conventional wisdom would have it. But why should anyone
care? For several reasons. First, court orders are an influential government output—indeed, they have been one of the primary vehicles
by which litigation has driven social change. So, like statutory or
administrative interventions, they deserve study. This is self-evidently
true for anyone interested in courts. It is equally true for anyone
interested in the institutions subject to court order. As institutional
reform practice has survived and matured, court orders, whether born

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of defendants’ consent or after a contested litigation, have formed an
important type of defendant-specific regulation. In requiring or forbidding specified policies and practices, court orders are a major part
of the regulatory backdrop against which many types of governmental
and nongovernmental actors operate.12 So for each type of institution
that faces a real risk of court-order regulation—including, for
example, schools13 jails and prisons, housing authorities,14 child welfare systems,15 unions,16 and employers17—those interested in understanding how these institutions actually work must get past the myth
of court order decline in order to understand the reach and impact of
this form of regulation, and how it is changing over time. In addition,
for jails and prisons more particularly, the stratospheric growth in
American incarceration18 makes it ever more important to understand
the accountability and regulatory mechanisms by which we as a polity
attempt to control jail and prison administration.
Second, to some extent, progressive scholars and policymakers
have thought it relatively low cost to allow conservatives to attack
injunctive litigation. After all, if something is already dead, why
expend any political capital defending it? For example, the Clinton
12 In correctional settings at least, court-order litigation contrasts sharply with more
individual inmate litigation, which has typically made its mark on jail and prison life and
administration more indirectly, by requiring defendants’ attention and response, threatening money damages, and creating space for inmate lawyering. Schlanger, Inmate Litigation, supra note 7, at 1664–90.
13 For a database of school cases, see Am. Cmtys. Project, Desegregation Court Cases
and School Demographic Data, http://www.s4.brown.edu/schoolsegregation/desegregationdata.htm (last visited Feb. 28, 2006).
14 See, e.g., 2 URBAN INST. METRO. HOUS. & CMTYS., BASELINE ASSESSMENT OF
PUBLIC HOUSING DESEGREGATION CASES: CASE STUDIES (2000), available at http://
www.huduser.org/publications/pubasst/baseline.html (listing cases).
15 See, e.g., Nat’l Ctr. for Youth Law, Foster Care Reform Litigation Docket (2000),
http://www.youthlaw.org/fcrldocket2000.pdf (listing and describing cases).
16 See JAMES B. JACOBS, MOBSTERS, UNIONS AND FEDS: THE MAFIA AND THE
AMERICAN LABOR MOVEMENT 143–45 tbl.8-1 (2005) (describing cases); James B. Jacobs,
Eileen M. Cunningham & Kimberly Friday, The RICO Trusteeships After Twenty Years: A
Progress Report, 19 LAB. LAW. 419, 453–56 tbl.I (2004) (same).
17 The “news archive” of the EEOC’s website, http://www.eeoc.gov/press/index.html,
includes descriptions of many class action-type court orders. See, e.g., Joint Motion for
Entry of Consent Decree, EEOC v. Mitsubishi Motor Mfg. of Am., No. 96-1192 (C.D. Ill.
June 23, 1998), available at http://www.eeoc.gov/policy/docs/mmma.html.
18 As of 2004, our jails and prisons incarcerated over two million people on any given
day, PAIGE M. HARRISON & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T
OF JUSTICE, NCJ 208801, PRISON AND JAIL INMATES AT MIDYEAR 2004, at 1 (2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim04.pdf, and many millions more over the
course of a year. (No authoritative annual figure is available, but for one recent estimate
of over thirteen million people annually, see Comm’n on Safety and Abuse in America’s
Prisons, Frequently Asked Questions, http://www.prisoncommission.org/faq.asp (last visited Mar. 16, 2006).) The total incarcerated population is over four times what it was in
1980. See Schlanger, Inmate Litigation, supra note 7, at 1583 tbl.I-A.

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Justice Department generally supported the PLRA with only minor
cavils.19 But if, as I argue, civil rights injunctive litigation is far from
dead, that should incline those in agreement with the plaintiffs’
goals—which are most often, though by no means always, progressive20—to fight its curtailment with much more vigor. This point is
especially relevant now, as Congress considers the Federal Consent
Decree Fairness Act proposed to implement restrictions similar to the
PLRA’s in other topical areas of governmental injunctive litigation.21
I argue below that the PLRA has had a sharply constrictive impact on
the amount of court-order regulation of jails and prisons; there is
every reason to expect that the Consent Decree Fairness Act, should
it pass, would operate similarly. I also argue below that court orders
have had an enormous impact on the nation’s jails and prisons,
through the regulating they accomplished, their indirect effects, and
the shadow they cast. Again, there is every reason to think that this
conclusion applies in non-corrections arenas as well. Accordingly, if
this Article is correct about the continuing prevalence of prison and
jail orders, the stakes of the proposed congressional “reform” are
extremely high. Progressives should think long and hard before they
allow this statute or others like it to pass without a strenuous fight.
The Article proceeds as follows. Part I briefly sketches the early
history of jail and prison court orders, and then describes the conven19 Prison Reform: Enhancing the Effectiveness of Incarceration: Hearing on S. 3, S. 38,
S. 400, S. 866, and H.R. 667 Before the S. Comm. on the Judiciary, 104th Cong. 14 (1995)
(testimony of Assoc. Att’y Gen. John Schmidt); see also Remarks on Vetoing the Departments of Commerce, Justice, and Related Agencies Appropriations Act, 1996, and an
Exchange with Reporters, 2 PUB. PAPERS 1908 (Dec. 19, 1995) (veto, by President Clinton,
of first version of appropriations bill (H.R. 2076) that included PLRA, listing objections
without mention of PLRA); Statement on Signing the Omnibus Consolidated Rescissions
and Appropriations Act of 1996, 1 PUB. PAPERS 636 (Apr. 26, 1996) (no mention of
PLRA).
20 For examples of conservative civil rights injunctive litigation, see Settlement Agreement and Release, Lawrence v. Saenz, No. Civ-S-04-1723 (E.D. Cal. Dec. 27, 2004) (available via PACER and on file with author) (settling lawsuit brought by Christian state
employee after he was forbidden to post political and religious materials in his workplace,
including bumper sticker opposing same-sex marriage); Press Release, Alliance Def. Fund,
Cal. Dep’t of Soc. Servs. to Employee: Feel Free to Express Yourself . . . Unless We Don’t
Like It (Aug. 23, 2004), http://www.alliancedefensefund.org/news/story.aspx?cid=2783
(announcing filing of Lawrence v. Saenz complaint and describing its basis); Tex. Educ.
Agency v. Leeper, 893 S.W.2d 432, 433, 446 (Tex. 1994) (affirming judgment of trial court
requiring Texas to allow homeschooling, though reversing injunction enforcing that judgment, because “[t]here is no indication . . . that defendants will attempt to contravene the
district court’s judgment, or ours”).
21 Federal Consent Decree Fairness Act, S. 489, 109th Cong. (2005) (introduced March
10, 2005 by Senator Lamar Alexander (R-TN)); Federal Consent Decree Fairness Act,
H.R. 1229, 109th Cong. (2005) (introduced March 1, 2005 by Representative Roy Blunt (RMO)).

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tional wisdom that institutional reform litigation is moribund along
with the revisionist claim that institutional reform litigation shows
essential continuity with its 1970s incarnation. Part II sets out changes
over time in the amount of court-order regulation, and discusses those
changes’ causes. Part III then analyzes the changes in the type of
injunctive regulation and the litigation process in which orders are
obtained.

HISTORY

I
AND COMMENTARY

A. Early History
The first prison and jail orders, in the 1960s, had some obvious
links to broader trends in civil rights litigation—in particular to the
desegregation litigation project spearheaded by the NAACP Legal
Defense Fund. Not only were the lawyers (and the judges) often identical,22 the characteristic litigation techniques—complex party structure; relatively loose coupling of right and remedy; and forward
looking and negotiated remedies, sometimes requiring an active and
continuing role for the presiding judge—were the same.23 There were
substantive links as well; the first cases required correctional facilities
to implement behind bars legal rights generally applicable on the
outside—free exercise of religion, equal protection of the laws, and
free speech—the most important of which related to African
American prisoners’ subordination.24 The 1960s saw federal courts’
22

Schlanger, Beyond the Hero Judge, supra note 7, at 2016–17.
For discussion of these features as the essential components of structural reform litigation, see, for example, Abram Chayes, The Role of the Judge in Public Law Litigation, 89
HARV. L. REV. 1281, 1282–84 (1976).
24 The earliest court order of which I am aware was entered in Fullwood v. Clemmer,
206 F. Supp. 370, 374 (D.D.C. 1962), which required District of Columbia jail officials to
allow Black Muslims to hold religious meetings. Desegregation orders followed almost
immediately. See Bolden v. Pegelow, 329 F.2d 95, 96 (4th Cir. 1964) (requiring integration
of District of Columbia’s Lorton Prison barber shops); Washington v. Lee, 263 F. Supp.
327, 333 (M.D. Ala. 1966) (desegregating penal and detention facilities in Alabama), aff’d,
390 U.S. 333 (1968) (per curiam); see also Cooper v. Pate, 378 U.S. 546 (1964) (per
curiam), rev’g 324 F.2d 165, 167 (7th Cir. 1963) (holding that Black Muslim prisoner failed
to state cause of action when he alleged discriminatory isolation and restrictions on possession of Koran). For a discussion of the connections between injunctive prison litigation
and desegregation litigation, see Schlanger, Beyond the Hero Judge, supra note 7, at
2002–03; see also Civil Rights of Institutionalized Persons: Hearings on S. 1393 Before the
Subcomm. on the Constitution of the S. Comm. on the Judiciary, 95th Cong. 10 (1977)
(statement of Assistant Att’y Gen. Drew S. Days, III) (“In the prison area the United
States has participated in many cases in several States concerning conditions of confinement. This is partly as an outgrowth of litigation by the Attorney General under title III of
the Civil Rights Act of 1964 to desegregate prison facilities.”); Telephone Interview with
Stephen A. Whinston, former attorney, U.S. Dep’t of Justice (Jan. 20, 1999) (describing
23

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newfound willingness to allow inmates the benefits of other rights, as
well.25 It did not take long before a set of cases established rights to
due process protections prior to imposition of prison discipline26 and
to more humane conditions of in-prison punishment for disciplinary
infractions.27 Soon thereafter, perhaps sensitized by the Attica riot
and its aftermath28 to the deprivations that characterized prison life,
courts began to grant ongoing relief in cases based on sometimes
uncontested evidence of brutal and disgusting conditions not just in
isolation cells but throughout facilities. The first case to require
wholesale reform was in Arkansas in 1970.29
The cases in the 1970s made up the first phase of this new kind of
litigation. In those early days, even quite radical inmates’ advocates
(who might have been expected to prefer more political, less legal,
how Department of Justice used its Title III desegregation authority as statutory hook for
jail and prison conditions investigations).
25 See, e.g., United States v. Muniz, 374 U.S. 150, 150 (1963) (holding that federal
inmates could sue under Federal Tort Claims Act for personal injuries suffered while in
federal custody); Eugene N. Barkin, The Emergence of Correctional Law and the Awareness of the Rights of the Convicted, 45 NEB. L. REV. 669, 686–88 (1966) (describing early
impact of Muniz).
26 See Sostre v. Rockefeller, 312 F. Supp. 863, 871–73 (S.D.N.Y. 1970) (requiring
various procedural safeguards before inmate could be confined in disciplinary segregation), aff’d in part, rev’d in part sub. nom. Sostre v. McGinnis, 442 F.2d 178, 203 (2d Cir.
1971) (“We would not lightly condone the absence of such basic safeguards against arbitrariness as adequate notice, an opportunity for the prisoner to reply to charges lodged
against him, and a reasonable investigation into the relevant facts—at least in cases of
substantial discipline.”); Nolan v. Scafati, 430 F.2d 548, 550 (1st Cir. 1970) (holding that
inmate’s description of basis for his disciplinary segregation might state claim for denial of
due process); Wolff v. McDonnell, 418 U.S. 539, 558 (1974) (holding that due process
clause requires limited procedural protections prior to prison’s imposition of major
discipline).
27 See, e.g., Jordan v. Fitzharris, 257 F. Supp. 674, 680 (N.D. Cal. 1966) (finding that
conditions in isolation constituted cruel and unusual punishment); Wright v. McMann, 257
F. Supp. 739 (N.D.N.Y. 1966) (denying relief on similar claim), rev’d, 387 F.2d 519, 527 (2d
Cir. 1967), on remand, 321 F. Supp. 127 (N.D.N.Y. 1970), aff’d in part, rev’d in part, 460
F.2d 126 (2d Cir. 1972); Jackson v. Bishop, 404 F.2d 571, 579 (8th Cir. 1968) (holding whipping of prisoners unconstitutional); see also Fulwood, 206 F. Supp. at 378–79 (holding confinement in “control cell” for prison rule violations unconstitutional because
disproportionate to offense).
28 On the Attica riot, see generally N.Y. STATE SPECIAL COMM’N ON ATTICA, ATTICA:
THE OFFICIAL REPORT OF THE N.Y. STATE SPECIAL COMMISSION ON ATTICA (1972); TOM
WICKER, A TIME TO DIE (1975). These sources describe how in 1971, inmates of the
Attica Correctional Facility in upstate New York took fifty hostages. N.Y. STATE SPECIAL
COMM’N ON ATTICA, supra, at 184–86. When authorities reclaimed control of the prison,
four days later, they charged in with guns blazing and shot dead thirty-nine people,
including ten of the hostages. Id. at xi, 373. Only four others were killed in the entire
incident. Id. at xi. As was widely reported, it was the “bloodiest one-day encounter
between Americans since the Civil War.” Id.
29 Holt v. Sarver, 309 F. Supp. 362 (E.D. Ark. 1970). For subsequent cases, see supra
note 4.

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strategies) had extraordinarily high hopes for the cases. Litigation,
and in particular overcrowding litigation,30 would further a decarceration strategy, some of them reasoned, in two ways. First, litigation
would discredit imprisonment as an institution by highlighting the disconnect between the ideals of penal practice and their realities.31
Second, it would make incarceration both difficult and expensive. For
example, David Rothman described some prison litigation proponents
as “subscrib[ing] to a crisis strategy”:
They are convinced that implementing prisoners’ rights will upset
the balance of power within the institutions, making prisons as we
know them inoperable . . . . Since terror and arbitrariness are at the
heart of the system, granting rights to prisoners is the best way to
empty the institutions. And emptying the institutions, decarcerating
the inmates, they say, should be the ultimate goal of reform.32

Dr. Robert Cohen, a correctional physician who has been a courtappointed medical care monitor over many years, explained recently:
“When all of us began our work, some of us felt that . . . by getting
prisons to provide adequate care, forcing them to spend the amount of
money that was required to do it right, that we would stop the growth
of prisons because it would be too expensive.”33 In many of the states
in which prison plaintiffs successfully pursued systemwide court
orders, there was indeed a huge impact on prison budgets.34 In fairly
30 See E-mail from John Boston, Dir., Prisoners’ Rights Project, New York City Legal
Aid Soc., to author (Oct. 22, 2005) (on file with the New York University Law Review).
31 See Michael A. Millemann, An Agenda for Prisoner Rights Litigation, in 2 PRISONERS’ RIGHTS SOURCEBOOK 153 (Ira P. Robbins ed., 1980) (edited version of speech
originally given in 1974 presenting this view, but arguing that litigation “run[s] the risk of
invigorating, rather than discrediting, today’s prisons”). Millemann was one of the early
staff attorneys at the ACLU National Prison Project.
32 David J. Rothman, Decarcerating Prisoners and Patients, 1 C.L. REV. 8, 19–20
(1973).
33 Dr. Robert Cohen, Testimony before the Commission on Safety and Abuse in
America’s Prisons 104 (July 20, 2005) (transcript available at http://www.prisoncommission.
org/transcripts/public_hearing_2_day_2_panel_1_Quality_of_Medical_Care.pdf).
34 See Malcolm M. Feeley, The Significance of Prison Conditions Cases: Budgets and
Regions, 23 LAW & SOC’Y REV. 273, 274 (1989) (collecting and reporting estimates of
budgetary impact in three major prison reform cases); John Fliter, Another Look at the
Judicial Power of the Purse: Courts, Corrections, and State Budgets in the 1980s, 30 LAW &
SOC’Y REV. 399, 404 tbl.1 (1996) (reporting estimates of court orders’ effects on budgets in
thirty states); Linda Harriman & Jeffrey D. Straussman, Do Judges Determine Budget Decisions? Federal Court Decisions in Prison Reform and State Spending for Corrections, 43
PUB. ADMIN. REV. 343, 345 tbl.1 (1983) (showing percentage increases of capital expenditures after court rulings on overcrowding); Jeffrey D. Straussman, Courts and Public Purse
Strings: Have Portraits of Budgeting Missed Something?, 46 PUB. ADMIN. REV. 345, 345
(1986) (discussing budgeting theory); William A. Taggart, Redefining the Power of the Federal Judiciary: The Impact of Court-Ordered Prison Reform on State Expenditures for Corrections, 23 LAW & SOC’Y REV. 241, 259 tbl.2, 261 tbl.3 (1989) (reporting results of
regression analysis examining impact of court-order reform on expenditures).

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short order, however, it became apparent that polities were not
responding to the increased cost of imprisonment by decarceration of
any type in adult facilities35 (juvenile decarceration was somewhat
more prevalent36). Indeed, there seemed to be little limit to the
public’s willingness to spend on adult imprisonment. So, although the
ACLU National Prison Project, for example, kept its mission statement’s reference to “reducing reliance on incarceration,”37 the goal of
civilizing rather than emptying the nation’s prisons and jails became
the more realistic aim for even a very comprehensive litigation
strategy. Advocates (joined more or less, depending on the case, by
their inmate clients), administrators, and judges set to, forging a new
kind of administrative order for penal and detention facilities.38
Although assessing the impact of the litigation is a complex topic
well beyond the scope of this paper, it is clear that inmates gained
much from the orders. For example, a case study of Guthrie v.
Evans,39 the Georgia State Prison case that ended in 1985, summarized its positive effects:
The inhuman practices and conditions at [Georgia State Prison] that
the special monitor described in 1979 no longer exist. The reign of
terror against inmates has ended. Today, guards do not routinely
beat, mace, and shoot inmates. Inmates and guards no longer die
from a lack of safety and protection. Guards can walk the cells
without having to carry illegal knives and pickax handles to protect
themselves. The medical, mental, nutritional, educational, and rec-

35 For data on adult incarceration, which began to accelerate in 1972, see Schlanger,
Inmate Litigation, supra note 7, at 1583. See also Alfred Blumstein & Allen J. Beck, Population Growth in U.S. Prisons, 1980–1996, 26 CRIME & JUST. 17, 19 fig.1 (1999).
36 For a description of the movement for juvenile decarceration, see generally Rodney
J. Henningsen, Deinstitutionalization Movement, in ENCYCLOPEDIA OF JUVENILE JUSTICE
114 (Marilyn D. McShane & Frank P. Williams, III eds., 2003).
37 E-mail from Alvin J. Bronstein, founder and former Director, ACLU Nat’l Prison
Project, to author (Oct. 24, 2005) (on file with the New York University Law Review).
38 For discussions of the bureaucratizing and other reforming force of inmate litigation,
see generally JAMES B. JACOBS, STATEVILLE: THE PENITENTIARY IN MASS SOCIETY
106–07 (1977); Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and
the Bureaucratization of American Corrections: Influences, Impacts and Implications, 24
PACE L. REV. 433 (2004); James B. Jacobs, Judicial Impact on Prison Reform, in PUNISHMENT AND SOCIAL CONTROL: ESSAYS IN HONOR OF SHELDON L. MESSINGER 63 (Thomas
G. Blomberg & Stanley Cohen eds., 1999); James B. Jacobs, The Prisoners’ Rights Movement and Its Impacts, in New Perspectives on Prison and Imprisonment 33, 54 (1983)
[hereinafter Jacobs, Prisoners’ Rights Movement]; Vincent M. Nathan, Have the Courts
Made a Difference in the Quality of Prison Conditions? What Have We Accomplished to
Date?, 24 PACE L. REV. 419 (2004).
39 93 F.R.D. 390 (S.D. Ga. 1981).

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reational needs of inmates are now provided for. . . . Those changes
were the result, in large part if not solely, of the Guthrie litigation.40

Inmate memoirs and writings confirm the point. For example, a 1979
article by Wilbert Rideau, then the (inmate) editor of the Louisiana
State Penitentiary’s Angolite, gave credit to court-order litigation for
reducing sexual violence:
While [rapes] used to be a regular feature of life here at the
Louisiana State Penitentiary, they are now a rare occurrence.
Homosexuality still thrives, but the violence and forced slavery that
used to accompany it have been removed. In 1976, Federal District
Court Judge E. Gordon West ordered a massive crackdown on
overall violence at the prison, which paved the way for the allocation of money, manpower, and sophisticated electronic equipment
to do the job. Since then, any kind of violence at all between
inmates elicits swift administrative reprisal and certain prosecution.
This, more than anything else, has made Angola safe for the
average youngster coming into the prison today.41

Many—though by no means all—other sources concur.42 Moreover, the effects of court orders are by no means limited to the systems in which they are entered. As I have suggested elsewhere,
“orders also cast a marked general deterrent shadow on systems
hoping to avoid them. And they have a mimetic impact, as other systems imitate them not out of fear but rather out of a more positive
interest.”43
Prison and jail officials were frequently collaborators in the litigation. If they did not precisely invite it, they often did not contest it.
And as I and others have observed, the remedies in the cases, frequently designed at least in part by the defendants themselves, very
40 BRADLEY STEWART CHILTON, PRISONS UNDER THE GAVEL: THE FEDERAL COURT
TAKEOVER OF GEORGIA PRISONS 108–09 (1991).
41 Wilbert Rideau, The Sexual Jungle (1979), in WILBERT RIDEAU & RON WIKBERG,
LIFE SENTENCES: RAGE AND SURVIVAL BEHIND BARS 73, 94 (1992). The case mentioned
was Williams v. Edwards, No. 71-98 (M.D. La.); the order in question was affirmed by the
Court of Appeals, 547 F.2d 1206, 1213–14 (5th Cir. 1977).
42 One example of this dispute can be found in the competing interpretations of Ruiz v.
Estelle, No. Civ. H-78-987 (S.D. Tex.) (first complaint filed 1972), the Texas prison litigation (discussed infra Part III.B.3). For the position that Ruiz has benefited inmates, see
generally Ben M. Crouch & James W. Marquart, Ruiz: Intervention and Emergent Order in
Texas Prisons, in COURTS, CORRECTIONS, AND THE CONSTITUTION: THE IMPACT OF JUDICIAL INTERVENTION ON PRISONS AND JAILS (John J. DiIulio, Jr. ed., 1990) [hereinafter
COURTS, CORRECTIONS, AND THE CONSTITUTION], and Sheldon Ekland-Olson & Steve J.
Martin, Ruiz: A Struggle over Legitimacy, in COURTS, CORRECTIONS, AND THE CONSTITUTION, supra at 73. On the other side, see John J. DiIulio, Jr., The Old Regime and the Ruiz
Revolution: The Impact of Judicial Intervention on Texas Prisons, in COURTS, CORRECTIONS, AND THE CONSTITUTION, supra, and CARROLL PICKETT WITH CARLTON STOWERS,
WITHIN THESE WALLS: MEMOIRS OF A DEATH HOUSE CHAPLAIN 135–50 (2002).
43 Schlanger, Inmate Litigation, supra note 7, at 1663.

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much served what at least some of those defendants saw as their interests: increasing their budgets, controlling their inmate populations,
and encouraging the professionalization of their workforces and the
bureaucratization of their organizations.44 As one jail administrator
put it:
To be sure, we used “court orders” and “consent decrees” for leverage. We ranted and raved for decades about getting federal
judges “out of our business”; but we secretly smiled as we requested
greater and greater budgets to build facilities, hire staff, and
upgrade equipment. We “cussed” the federal courts all the way to
the bank.45

Even when the litigation was not simply justification for a larger
budget, it was useful to prison and jail administrators seeking to
solidify their control over their organizations. A prison official in
Kentucky, describing a major court-order case46 about conditions at
the Kentucky State Reformatory, explained that the consent decree in
the case
changed the whole system. It made the system unified. We had a
cabinetwide policy and then institution policies clarified those. . . .
That’s the guideline by which you operate and function. . . . We
have all this training. The training uses all the policies and procedures, explains the importance of the policies and procedures.47

The decrees professionalized and bureaucratized by the terms
they imposed, but also by their impact on who was interested in
becoming or qualified to become an administrator. As an inmate
involved in the same Kentucky litigation observed:
But you know what? Guys like those old-time wardens can never
be warden at LaGrange any more. That’s the beautiful thing about
that consent decree. It made that system so damn sophisticated that
you just can’t walk out of the head of a holler in Hazard, out of the
logging woods, an’ walk right in and be the warden.48

In short, court orders had an enormous impact on the nation’s
jails and prisons by direct regulation, their indirect effects, and the
shadow they cast. Among the areas affected were staffing, the
amount of space per inmate, medical and mental health care, food,
44

See, e.g., Schlanger, Beyond the Hero Judge, supra note 7, at 2012.
Mark Kellar, Responsible Jail Programming, AM. JAILS, Jan.–Feb. 1999, at 78, 79.
46 Thompson v. Bland, No. Civ. 79-0092 (W.D. Ky.), consolidated with Kendrick v.
Bland, No. Civ. 76-0079 (W.D. Ky.). For the first decree in the case, see Kendrick v. Bland,
586 F. Supp. 1536 (W.D. Ky. 1984). Information about this litigation is available at http://
clearinghouse.wustl.edu (see case PC-KY-007).
47 LLOYD C. ANDERSON, VOICES FROM A SOUTHERN PRISON 202 (2000) (quoting
lawyer Barbara Jones).
48 Id. at 207 (quoting prisoner Wilgus).
45

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hygiene, sanitation, disciplinary procedures, conditions in disciplinary
segregation, exercise, fire safety, inmate classification, grievance policies, race discrimination, sex discrimination, religious discrimination
and accommodations, and disability discrimination and accommodations—in short, nearly all aspects of prison and jail life, with the
notable (if not quite universal) exceptions of education, custody level,
and rehabilitative programming and employment.
B. The Purported Fading of the Structural Reform Injunction
As prison and jail court orders began to proliferate in the 1970s,
scholars began to showcase these decrees, hailing or condemning the
cases as the epitome of a new form of litigation—“public law litigation,” or “structural reform litigation,” Abe Chayes and Owen Fiss
named it in their canonical treatments.49 During the 1970s and 1980s,
the jail and prison cases provided a field for sustained scholarly debate
about the intertwined issues of legitimacy and capacity—that is, the
appropriate role of courts in light of democratic theory and limited
judicial competence.50
Through the 1990s, however, the volume of scholarly commentary diminished and a shared historical account, told by both the litigation’s defenders and its detractors, emerged as conventional
wisdom. This account explained that civil rights injunctive practice
seeking to transform governmental institutions in a wide variety of
settings and ways occurred because judges—misguided or heroic,
depending on the ideology of the narrator—took it upon themselves
in the 1970s and 1980s to impose their vision of humane policy on the
nation. This moment of judicial imperialism (as right-leaning authors
perceived it), or of appropriate judicial concern for the rights of
unempowered Americans (as left-leaning authors argued), is largely
gone now, the account continued,51 mostly because it has been “throttled by the Supreme Court under Chief Justices Warren Burger and
49 Chayes, supra note 23, at 1284; Owen M. Fiss, Foreword: The Forms of Justice, 93
HARV. L. REV. 1, 2 (1979).
50 For defenses of judicial legitimacy and capacity, see generally Fiss, supra note 49 and
Ralph Cavanagh & Austin Sarat, Thinking About Courts: Toward and Beyond a Jurisprudence of Judicial Competence, 14 LAW & SOC’Y REV. 371, 376 (1980); and against them, see
generally DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY (1977) and Nathan
Glazer, Towards an Imperial Judiciary?, 41 PUB. INT. 104 (1975). PETER H. SCHUCK,
SUING GOVERNMENT: CITIZEN REMEDIES FOR OFFICIAL WRONGS (1983) is also extremely
useful, although less easily categorized.
51 See, e.g., MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING
AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS 145 (1998)
(arguing that litigated reform of prisons had, by the late 1980s, “run its course”); Richard
L. Marcus, Public Law Litigation and Legal Scholarship, 21 U. MICH. J.L. REFORM 647,
648 (1988) (“Chayes’s focus on public law litigation seems ill-conceived because the inci-

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William Rehnquist.”52 Ninth Circuit judge and former labor lawyer
Marsha Berzon recently stated, a bit wistfully perhaps, that “‘structural injunctions’ have receded from the remedial scene”;53 those that
remain, another account argues, “appear to be vestiges of a bygone
era.”54 Accordingly, the conventional wisdom continues, the late
1980s and the 1990s were a time of fading ambition for would-be
reformers: “[B]y the end of the twentieth century most of the planned
litigation campaigns had petered out,” replaced by “catch-as-catchcan” litigation against “targets of opportunity in an increasingly conservative judicial climate.”55 Malcolm Feeley and Edward Rubin’s
recent summary of the mid-1990s state of play in correctional courtorder practice is consonant with this more general take on civil rights
practice. By the 1980s, they explain, prison litigation was in its
endgame: “No systemwide suits had been successful for years, and
courts began terminating long-standing court orders and consent
decrees.”56
Different scholars have attributed the decline of the civil rights
injunction to different forces. Probably the most common explanation
is the increasing conservativism of the federal bench. As illustrated by
the quotation above attributing structural reform litigation’s demise to
Burger/Rehnquist Court strangulation, some attribute the change to
doctrinal shifts imposed on lower courts by the Supreme Court.
Others pin the blame or praise not on particular doctrinal shifts but
broader attitudinal ones. For example, Myriam Gilles suggests that
“the structural reform injunction has disappeared from the contemporary sociolegal landscape because of the essentially political fear of
judicial activism.”57 The anti-activist attitude, she argues, has moved
courts to erect “procedural barriers” that have “all but denied litigants
the ability to bring claims in federal court that challenge widespread
dence of the kind of lawsuits he had in mind—school desegregation and prison conditions
cases—was waning even as he wrote.”) (referring to Chayes, supra note 23).
52 SANDLER & SCHOENBROD, supra note 5, at 10 (summarizing but disputing conventional wisdom).
53 Marsha S. Berzon, Rights and Remedies, 64 LA. L. REV. 519, 525 (2004).
54 Myriam Gilles, An Autopsy of the Structural Reform Injunction: Oops . . . It’s Still
Moving!, 58 U. MIAMI L. REV. 143, 144 (2003).
55 Mark Tushnet, Some Legacies of Brown v. Board of Education, 90 VA. L. REV. 1693,
1696 (2004).
56 Edward L. Rubin & Malcolm M. Feeley, Judicial Policy Making and Litigation
Against the Government, 5 U. PA. J. CONST. L. 617, 661 (2003). See infra Table 1 & note
100 for a demonstration that Rubin and Feeley’s precise claim is incorrect.
57 Gilles, supra note 54, at 161. What Gilles calls “anti-activism” might more accurately
be described as “anti-plaintiffism”—a reluctance to accord judicially sanctioned relief to
complainants. Cf. THOMAS M. KECK, THE MOST ACTIVIST SUPREME COURT IN HISTORY:
THE ROAD TO MODERN JUDICIAL CONSERVATISM 2 (2004) (describing Rehnquist Court as
activist because it so frequently struck down legislation).

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and systemic practices that violate individual rights and constitutional
guarantees.”58 Taking a less jurocentric approach, still others have
attributed the fading of public law litigation to factors connected with
plaintiffs’ lawyers. In one interesting recent analysis, Mark Tushnet
explores the fading of planned litigation campaigns, the source of
some of the flashiest public law litigation. He explains that planned
litigation is simply not sustainable in many arenas, first because lawyers lack the degree of control they need to act strategically, and
second because of its vulnerability to legislative obstacles, including
the defunding of plaintiffs’ lawyers and outright legislative override.59
In any event, the generally accepted view has for some time been
that civil rights injunctive practice has become essentially moribund.
In the arena of prison and jail litigation, then, the Republican 100th
Congress’s 1996 intervention was essentially a move that could be
expected finally to put the few lingering correctional court orders out
of their misery, without having much broader impact. The Prison Litigation Reform Act, passed as part of Newt Gingrich’s Contract With
America 60 (albeit with quite a bit of Democratic support61), imposed
numerous restrictions on entry of new jail and prison orders and continuation of old ones. Nonetheless, consistent with the story of
decline just set out, observers in the late 1990s explained that “[i]t is
not clear how much real effect” the PLRA would have, because
“many of the mega-conditions cases that were initiated in the 1970s
had already been terminated or were already winding down by 1994
or 1995, and there was general consensus that new suits attacking an
array of conditions were not likely to emerge.”62 According to
another commentary, the PLRA was essentially a “symbolic
statute[ ],” because “the courts had already done most of what the
Republican legislation sought to accomplish”—that is, courts had
already limited the availability of relief to prison and jail plaintiffs and
allowed institutional defendants various ways out of entered
decrees.63
58

Gilles, supra note 54, at 163.
Tushnet, supra note 55, at 1696–1705.
60 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).
61 See supra note 19 and accompanying text.
62 FEELEY & RUBIN, supra note 51, at 383–84. By 2003, however, Feeley and Rubin
had slightly shifted emphasis, explaining that the PLRA “has made it significantly more
difficult for prisoners to bring claims in federal courts,” and describing the statute as
“important” in its effect. Rubin & Feeley, supra note 56, at 661–62.
63 Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of
the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47
DUKE L.J. 1, 21 (1997).
59

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C. Revisionism: Reports of the Death of the Structural Reform
Injunction Are Greatly Exaggerated
The conventional wisdom just laid out makes sense of the sharp
drop-off in scholarly interest in civil rights injunctions between the
1980s and the 1990s, when the stream of books and major law review
articles slowed to a trickle. People are more interested in live techniques of seeking social change than in approaches that have faded in
importance. Yet there has been a recent resurgence of scholarly
interest in institutional reform litigation. Alternative stories about the
litigation’s life cycle have begun to emerge. Thus a recent book by
Ross Sandler and David Schoenbrod discusses what its authors see as
the extremely problematic practice of “democracy by decree” very
much in the present tense, suggesting that “academic interest may
have waned, but the incidence and effect of institutional reform litigation have not. . . . New decrees get issued, piling up on the old, few of
which are actually terminated.”64 Sandler and Schoenbrod find continuity in injunctive practice not only in the volume of regulation but
in its nature: The case studies they offer to illuminate the ills existing
in public law litigation span the 1970s, 1980s, and 1990s, and those ills
are described in the present tense.
Like Sandler and Schoenbrod’s book, another recent account of
structural reform litigation, by Charles Sabel and William Simon,
takes issue with the trajectory traced by the earlier conventional
wisdom, concluding that institutional reform litigation has not faded
away. Instead, Sabel and Simon write of the “protean persistence of
public law litigation”:65
[D]espite decades of criticism and restrictive doctrines, the lower
courts continue to play a crucial role in a still-growing movement of
institutional reform in the core areas of public law practice [Abram]
Chayes identified: schools, prisons, mental health, police, and
housing. . . . There is no indication of a reduction in the volume or
importance of Chayesian judicial activity.66

Thus, Sabel and Simon share with Sandler and Schoenbrod a
revisionist view of public law litigation as a vital contemporary phenomenon, similar to its 1980s presence. Where Sandler and
Schoenbrod find almost nothing to praise about their topic, however,
Sabel and Simon are very positive. And where Sandler and Schoen64 SANDLER & SCHOENBROD, supra note 5, at 10–11. See also Zaring, supra note 7, at
1020 (stating that institutional reform litigation “remains a vibrant and active part of the
law, governing a variety of different types of local institutions”).
65 Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1015, 1021 (2004).
66 Id. at 1018–19 (referring to Chayes, supra note 23).

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brod’s story is one of continuity, not only in volume and importance
but in other crucial remedial features, Sabel and Simon offer a
description of historical evolution, even ascent. The latter argue that
injunctive civil rights practice has grown more effective over time as
practitioners have shifted structural remedies “away from commandand-control injunctive regulation toward experimentalist intervention,” which “combines more flexible and provisional norms with procedures for ongoing stakeholder participation and measured
accountability.”67 Still, the impression Sabel and Simon give is that
such change is limited to the nature of the remedial regimes established by injunctive litigation; they do not report many discontinuities
apart from the purported shift towards “experimentalism.”68 Thus,
Simon and Sabel’s article and Sandler and Schoenbrod’s book share a
view of stability in much that is essential to civil rights injunctive
practice.
* * * *
To summarize these descriptive accounts of court-order practice
over time, there are two versions extant, each producing testable
hypotheses. The first, conventional story is one of decline; it suggests
that court-order intervention in governmental institutions peaked in
the 1980s and lessened through the 1990s, and that for jail and prison
practice in particular, the fact that the 1996 PLRA both enabled
defendants to get out of old court orders more easily69 and hindered
67

Id. at 1019.
For example, in their fairly extensive discussion of prison and jail court orders they
mention only two other changes over time: A footnote (citing an earlier, unpublished version of this Article) briefly states that it appears that prison orders are covering fewer
topics than they did twenty years ago, and a sentence in text reports (without citation) that
medical care has grown to be a more common topic than overcrowding in prison-regulating
orders. Id. at 1038 n.67, 1052. The changes in topic number are discussed infra Part III.A.
The medical care point seems to be erroneous; at least in the census topic data, medical
care has not outpaced overcrowding. In 2000, 14% of the total prison population was
housed in facilities that reported a crowding order; 6% of the total prison population was
housed in facilities that reported a medical care order. Even medical and mental health
care together only barely outranked crowding as a court-order regulated topic. In jails, the
Bureau of Justice Statistics did not ask about mental health orders, but 17% of the jail
population was housed in facilities with medical care orders, compared to 28% in facilities
with crowding orders. The results are similar when calculated by facility, rather than by
population. See Margo Schlanger, Technical Appendix to Civil Rights Injunctions over
Time, http://schlanger.wustl.edu [hereinafter Technical Appendix].
69 18 U.S.C. § 3626(b)(3) (2000) requires courts to grant defendants’ motions to terminate existing injunctions 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
68

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plaintiffs’ ability to obtain new orders70 was not very consequential.
The second, a revisionist story, is one of continuity in volume and perhaps in other important aspects of court-order practice.
I argue below that available systematic data and other more qualitative evidence demonstrate that both accounts are wrong. This error
is unlikely to be confined to correctional court orders; it seems likely
that the trends discussed here (at least those not caused by the PLRA)
are relevant in other areas of civil rights injunctive practice as well.
Thus, this case study of jail and prison court orders over time may
shed some much needed light on civil rights injunctive practice more
generally.
II
COURT-ORDER REGULATION OF JAILS
OVER TIME

AND

PRISONS

Understanding nearly anything about court-order regulation
poses significant challenges. As with all types of litigation, the cases
do not necessarily lead to reported decisions. Indeed, because, like
most categories of cases, they are likely to settle, they may well not
lead to any judicial decisions at all, but rather to negotiated court
orders that are completely unobservable by ordinary case research
methods. The opinions compiled in law reporters are therefore limited sources; the reporters contain the relevant decision rules but not
anything like the universe of cases. Other reasonably available information—primarily case study literature—mostly describes unusually
large and contentious cases.71 The resulting “problem of the worst
the prospective relief is narrowly drawn and the least intrusive means to correct the violation.
70 See 18 U.S.C. § 3626(a)(1)(A) (2000) (“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.”); 18 U.S.C. § 3626(c)(1)
(2000) (“In any civil action with respect to prison conditions, the court shall not enter or
approve a consent decree unless it complies with the limitations on relief set forth in subsection (a).”); 42 U.S.C. § 1997e(d)(3) (2000) (limiting attorneys’ fees); 42 U.S.C.
§ 1997e(a) (2000) (requiring exhaustion of administrative remedies prior to filing in
“prison conditions” cases).
71 The case studies include: ANDERSON, supra note 47 (Kentucky prison litigation);
LEO CARROLL, LAWFUL ORDER: A CASE STUDY OF CORRECTIONAL CRISIS AND REFORM
(1998) (Rhode Island prison litigation); CHILTON, supra note 40 (Georgia prison litigation); PHILLIP J. COOPER, HARD JUDICIAL CHOICES: FEDERAL DISTRICT COURT JUDGES
AND STATE AND LOCAL OFFICIALS 233–70 (1988) (examining Rhodes v. Chapman, 434 F.
Supp. 1007 (S.D. Ohio 1977) and Ohio prison reform); BEN M. CROUCH & JAMES W.
MARQUART, AN APPEAL TO JUSTICE: LITIGATED REFORM OF TEXAS PRISONS (1989); M.
KAY HARRIS & DUDLEY P. SPILLER, JR., AFTER DECISION: IMPLEMENTATION OF JUDICIAL DECREES IN CORRECTIONAL SETTINGS (1977) (study of implementation of court

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orders in Arkansas prison system, Louisiana’s Orleans and Jefferson Parish jails located in
New Orleans and nearby suburban area, respectively, and Baltimore City Jail); STEVE J.
MARTIN & SHELDON EKLAND-OLSON, TEXAS PRISONS: THE WALLS CAME TUMBLING
DOWN (1987); WILLIAM BANKS TAYLOR, BROKERED JUSTICE: RACE, POLITICS, AND
MISSISSIPPI PRISONS, 1798–1992 (1994); LARRY W. YACKLE, REFORM AND REGRET: THE
STORY OF FEDERAL JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM 31 (1989);
John V. Baiamonte, Jr., Holland v. Donelon Revisited: Jail Litigation in Jefferson Parish,
Louisiana, 1971–1991, 70 PRISON J. 38 (1990); Michael J. Churgin, Mandated Change in
Texas: The Federal District Court and the Legislature, in NEITHER ANGELS NOR THIEVES:
STUDIES IN THE DEINSTITUTIONALIZATION OF STATUS OFFENDERS 872 (Joel F. Handler &
Julie Zatz eds., 1982) (examining relationship between judicial decrees and legislation in
context of Texas juvenile justice system); Fred Cohen & Sharon Aungst, Prison Mental
Health Care: Dispute Resolution and Monitoring in Ohio, 33 CRIM. L. BULL. 299 (1997);
Columbus B. Hopper, The Impact of Litigation on Mississippi’s Prison System, 65 PRISON
J. 54 (1985); G. Larry Mays & William A. Taggart, The Impact of Litigation on Changing
New Mexico Prison Conditions, 65 PRISON J. 38 (1985); Daniel R. Pinello, Palmigiano v.
Garrahy Case Study, in REMEDIAL LAW: WHEN COURTS BECOME ADMINISTRATORS 97
(Robert C. Wood ed., 1990) (examining Rhode Island prison litigation); Judith Resnik &
Nancy Shaw, Prisoners of Their Sex: Health Problems of Incarcerated Women, in 2 PRISONERS’ RIGHTS SOURCEBOOK: THEORY, LITIGATION, PRACTICE 319 (Ira P. Robbins ed.,
1980) (includes extensive discussion of Todaro v. Ward’s reform of health services at New
York’s Bedford Hills women’s prison); Ted S. Storey, When Intervention Works: Judge
Morris E. Lasker and New York City Jails, in COURTS, CORRECTIONS, AND THE CONSTITUTION, supra note 42, at 138, 166; Susan P. Sturm, Note, “Mastering” Intervention in Prisons,
88 YALE L.J. 1062 (1979) (describing and analyzing role of masters, in particular in Rhode
Island prison litigation); Susan Sturm, The Rhode Island Prison Decree, in DAVID W.
LOUISELL ET AL., CASES AND MATERIALS ON PLEADING AND PROCEDURE 1243 (6th ed.
1989); Bert Useem, Crain: Nonreformist Prison Reform, in COURTS, CORRECTIONS, AND
THE CONSTITUTION, supra note 42, at 223 (examining court-ordered reform in West
Virginia).
Studies that look at more than one litigation, but include extensive and useful information on particular prison or jail cases include: JACK BASS, TAMING THE STORM: THE
LIFE AND TIMES OF JUDGE FRANK M. JOHNSON, JR., AND THE SOUTH’S FIGHT OVER CIVIL
RIGHTS (1993); MARK T. CARLETON, POLITICS AND PUNISHMENT: THE HISTORY OF THE
LOUISIANA STATE PENAL SYSTEM (1971); JOHN J. DIIULIO, JR., GOVERNING PRISONS: A
COMPARATIVE STUDY OF CORRECTIONAL MANAGEMENT (1987) (comparing management
of Texas, California, and Michigan prison systems); FEELEY & RUBIN, supra note 51
(including case studies of prison litigation in Arkansas, Texas, “Old Max” maximum
security prison in Colorado, United States Penitentiary at Marion, Illinois, and California
state court litigation about conditions in Santa Clara County jails); JACOBS, supra note 38
(case study of Stateville, Illinois’s largest maximum security prison); FRANK R. KEMERER,
WILLIAM WAYNE JUSTICE: A JUDICIAL BIOGRAPHY (1991); PAUL W. KEVE, THE HISTORY OF CORRECTIONS IN VIRGINIA (1986); DAVID M. OSHINSKY, “Worse than Slavery”:
Parchman Farm and the Ordeal of Jim Crow Justice (1996) (analysis and comparison of
Mississippi’s Parchman Penitentiary’s past and present); TINSLEY E. YARBROUGH, JUDGE
FRANK JOHNSON AND HUMAN RIGHTS IN ALABAMA 182–217 (1981).
In addition, WAYNE N. WELSH, COUNTIES IN COURT: JAIL OVERCROWDING AND
COURT-ORDERED REFORM (1995), deals comprehensively with state and federal court
intervention in, and supervision of, California’s county jail operations between 1975 and
1989, and includes extensive treatment of litigation over conditions in the county jails of
Santa Clara, Orange, and Contra Costa; and Donald P. Baker et al., Judicial Intervention in
Corrections: The California Experience—An Empirical Study, 20 UCLA L. REV. 452
(1973) examines the multitude of small state and federal court interventions in California’s
prison practices.

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case,”72 means our knowledge about a few cases is deep but highly
unreliable more generally because those few are so aberrational.
As to some issues, informal observation by frequent participants—inmates’ advocates and defendants—also seems likely to be
somewhat inaccurate. In part, this is because of the changing makeup
of the plaintiffs’ bar. When jail and prison injunctive litigation began,
the cases were initiated by lawyers supported by a variety of public
interest law organizations.73 County by county, federally funded legal
services lawyers74 and private lawyers handled jail litigation all around
the country. As for prisons, the NAACP Legal Defense and Education Fund had a large docket of prison cases, and the ACLU’s
National Prison Project, which remains the leading national inmate
litigation shop, got started in the early 1970s.75 Over time, however,
much of the support for injunctive inmate litigation eroded. The
NAACP ended its involvement in 1977; legal services offices lost substantial funding during the Reagan years and cut back on their jail
dockets; foundation support for the National Prison Project was cut in
the 1990s.76 A sense of declining involvement by these high-profile
participants in civil rights injunctive practice in jails and prisons
undoubtedly contributed to the common impression, described above,
that the practice was itself declining. Around the same time, however,
smaller, more regionally focused organizations began to emerge. To
list just a few that still litigate jail and prison cases, the Southern
Center for Human Rights (in Atlanta), the Southern Poverty Law
Center (in Montgomery), Massachusetts Correctional Legal Services
(in Boston), and the Prison Law Office (in San Quentin) were all
founded in the 1970s.77 In addition, as legal clinical education devel72

Jacobs, Prisoners’ Rights Movement, supra note 38, at 51.
Schlanger, Beyond the Hero Judge, supra note 7, at 2017–21.
74 See Philip B. Taft, Jr., Jail Litigation: Winning in Court Is Only Half the Battle, CORRECTIONS MAG., June 1983, at 21, 23 (“Because jails are locally controlled, most of the
battles have been waged piecemeal by local legal services attorneys.”). Between 1970 and
1990, the National Clearinghouse for Legal Services’ Clearinghouse Review reported the
progress of 327 jail and prison conditions injunctive cases, nearly all litigated by legal services lawyers. For more information on the inmate litigation docket of legal services
offices, see Schlanger, Beyond the Hero Judge, supra note 7, at 2019 & nn.100–02;
Schlanger, Inmate Litigation, supra note 7, at 1632 & n.260.
75 See Schlanger, Beyond the Hero Judge, supra note 7, at 2018 (discussing ACLU
involvement in early 1970s).
76 See infra note 173 and accompanying text.
77 See Massachusetts Correctional Legal Services, http://www.mcls.net (last visited Feb.
2, 2006); Prison Law Office, http://www.prisonlaw.com/about.html (last visited Feb. 2,
2006); The Southern Center for Human Rights, http://www.schr.org/aboutthecenter/
index.html (last visited Feb. 2, 2006); Southern Poverty Law Center, http://www.splcenter.
org/center/about.jsp (last visited Feb. 2, 2006).
73

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oped,78 a number of law school clinics took on jail and prison cases.79
Thus, although the changing makeup of the advocacy community may
have contributed to shifts in litigation practice over time, it simultaneously counsels in favor of cautious interpretation of the views of the
participants, whose impressions of those changes may sometimes be
affected by their own altered vantage point.
Accordingly, while this Article incorporates my readings of cases
and case studies in addition to my own interviews, for any issue in
which quantification seems useful I also analyze what has until now
been a largely unexamined data source on these points: the answers
given by staff at almost every jail and prison in the country to periodic
correctional censuses conducted by the Bureau of Justice Statistics
(BJS), a branch of the U.S. Department of Justice.
This Part proceeds as follows: Section A discusses the correctional censuses on which the rest of this Part (as well as Part III.A) is
based. In Section B, I begin by looking longitudinally at state level
statistics of court-order incidence. These statistics demonstrate essential stability from the 1980s until the mid-1990s, and then a sea change.
Between the datapoints in 1993/1995 and 1999/2000—the time in
which the PLRA was enacted—there was a large decline in the proportion of states with a substantial incarcerated population subject to
court order, in both jails and prisons, coupled with an increase in variance among the states for prisons. For prisons, though less so for jails,
the result is concentration of court orders in a few highly regulated
states. Indeed, because of the increase in variance among states, Section C’s nationwide figures do not show the PLRA’s enormous influence; that influence is masked by the presence of outlier states.
Section C contributes insight into the strong correlation between
facility size and court-order regulation, and an analysis of the incidence of new court orders as compared to old. Section D then canvasses available explanations for the notable decline in court-order
78 What Margaret Martin Barry, Jon Dubin, and Peter Joy identify as “the second wave
of clinical legal education” began in earnest in the late 1960s. Margaret Martin Barry, Jon
C. Dubin, & Peter A. Joy, Clinical Education for this Millennium: The Third Wave, 7
CLINICAL L. REV. 1, 12 (2000).
79 A survey in 1979 included a number of projects in which students handled inmate
civil cases. COUNCIL ON LEGAL EDUC. FOR PROF’L RESPONSIBILITY, INC., SURVEY AND
DIRECTORY OF CLINICAL LEGAL EDUCATION, 1978–1979, at 1–20 (1979). For a list of
current prisoners’ civil rights projects, see Am. Ass’n of Law Libraries, Special Interest
Sections Joint Roundtable: Servs. to Pro Se Patrons & Prisoners, Law School Clinics
Serving Prisoners (July 12, 2004), available at http://www.aallnet.org/sis/ripssis/
clinics_serving_prisoners.pdf (handout). See also Susan P. Sturm, Lawyers at the Prison
Gates: Organizational Structure and Corrections Advocacy, 27 U. MICH. J. L. REFORM 1,
89–97 (1993) (describing scope and duration of involvement in corrections litigation by
ninety-five law school clinical programs).

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prevalence demonstrated in Section B’s state-by-state data and argues
that the cause of the decline was most likely the PLRA. This attribution of cause suggests that the observed recent decline in correctional
court orders may be less severe in other areas of civil rights litigation.
A. The Correctional Censuses
Approximately every five years from the early 1980s until 2000,
the Bureau of Justice Statistics asked each local jail and state prison in
the country80 questions about facility operations.81 Because participation in these censuses was close to complete—nearly every state and
local facility in the country (the fifty states and the District of
Columbia are included) answered some questions in every census, and
the very large majority answered nearly every question relevant here
80 Federal facilities are included in some but not other censuses, so I omit them
entirely. Jails in Indian country are not included; for information on these facilities, see,
for example, TODD D. MINTON, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
NCJ 208597, JAILS IN INDIAN COUNTRY, 2003 (2005), available at http://www.ojp.usdoj.gov/
bjs/pub/pdf/jic03.pdf.
81 The relevant citations for the published reports about the censuses are: JAMES J.
STEPHAN & JENNIFER C. KARBERG, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 198272, CENSUS OF STATE AND FEDERAL CORRECTIONAL FACILITIES, 2000
(2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/csfcf00.pdf [hereinafter 2000
PRISON CENSUS]; JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 186633, CENSUS OF JAILS, 1999 (2001), available at http://www.ojp.usdoj.gov/bjs/
pub/pdf/cj99.pdf; JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 164266, CENSUS OF STATE AND FEDERAL CORRECTIONAL FACILITIES, 1995
(1997), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/csfcf95.pdf; CRAIG A. PERKINS,
JAMES J. STEPHAN & ALLEN J. BECK, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF
JUSTICE, NCJ 151651, CENSUS OF JAILS AND ANNUAL SURVEY OF JAILS: JAILS AND JAIL
INMATES, 1993–94 (1995), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jaji93.pdf;
JAMES STEPHAN, BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 137003,
CENSUS OF STATE AND FEDERAL CORRECTIONAL FACILITIES, 1990 (1992); BUREAU OF
JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 127992, CENSUS OF LOCAL JAILS, 1988
(1991); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NCJ 105585, 1984 CENSUS
OF STATE ADULT CORRECTIONAL FACILITIES (1987); BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, NCJ 95536, THE 1983 JAIL CENSUS (1984).
The relevant citations for raw data are: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T
OF JUSTICE, ICPSR STUDY NO. 4021, CENSUS OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 2000 (2005); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE,
ICPSR STUDY NO. 6953, CENSUS OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 1995 (2005); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, ICPSR STUDY
NO. 6648, NATIONAL JAIL CENSUS, 1993 (1996); BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, ICPSR STUDY NO. 9908, CENSUS OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 1990 (2001); BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, ICPSR STUDY NO. 9256, NATIONAL JAIL CENSUS, 1988 (2005); BUREAU OF JUSTICE
STATISTICS, U.S. DEP’T OF JUSTICE, ICPSR STUDY NO. 8444, CENSUS OF STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES, 1984 (2005); BUREAU OF JUSTICE STATISTICS,
U.S. DEP’T OF JUSTICE, ICPSR STUDY NO. 8203, NATIONAL JAIL CENSUS, 1983 (2005).
These studies are available by study number at http://www.icpsr.umich.edu.

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in every census82—this dataset is a trove of systematic information
about correctional court orders.
Four times, then, between 1983 and 2000, every state prison and
nearly every local jail answered a set of federal-government-posed
questions about its regulation by court order. Because orders nearly
always last at least several years, almost every order entered against a
jail or state prison by a court after about 1980 (and many of the prior
orders as well) ought to be included in the resulting tally. The information gathered is not detailed, but it is extremely useful nonetheless.
As most recently phrased, the first question was: “On June 30, 2000,
was this facility under a State or Federal court order or consent decree
to limit the number of inmates it can house?”83 The second question,
as most recently phrased, was: “On June 30, 2000, was this facility
under a State or Federal court order or consent decree for specific
conditions of confinement?”84 Beginning with the 1984 prison census
(not, that is, in the 1983 jail census), facilities that answered yes were
asked to check off any applicable item in a list of “specific conditions,”85 and beginning in 1988 they were also asked “Was this facility
under court order or consent decree for the totality of conditions (the
cumulative effect of several conditions)?”86
Even though the censuses shed a great deal of light unavailable
from other sources, they are themselves limited. One important limitation is that the most recent censuses use individual facilities as the
observational unit for prisons, but jurisdictions as the observational
unit for jails. In order to use the relevant data, I have, regrettably,
been forced to follow suit.87 Prisons are usually state facilities that
house exclusively felony convicts, whereas jails are the county- and
city-run institutions that house a combination of pretrial detainees,
post-trial convicts not yet admitted to prison, misdemeanants, and
82 The few missing observations are discussed in this Article’s Technical Appendix,
supra note 68.
83 BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CJ-43, 2000 CENSUS OF
STATE AND FEDERAL ADULT CORRECTIONAL FACILITIES 2 (2000), available at http://
www.ojp.usdoj.gov/bjs/pub/pdf/cj43.pdf.
84 Id. at 3.
85 See, e.g., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CJ-42, 1984
CENSUS OF STATE ADULT CORRECTIONAL FACILITIES 4 (1984).
86 See, e.g., BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CJ-3, 1988
NATIONAL JAIL CENSUS 1 (1988). Much more information about the censuses is available
at note 179 infra, and at this Article’s Technical Appendix, supra note 68.
87 I could, of course, maintain nominal parallelism by collapsing observations of prisons
from the facility level to the jurisdictional—that is, state—level. But actually, jail jurisdictions—that is, county or city level observations—are, if not perfectly analogous, more like
prison facilities than like prison jurisdictions (state level observations). So while the ideal
comparison would be prison facilities to jail facilities, the comparison used here—prison
facilities to jail jurisdictions—is the close second best.

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fairly short-term felony offenders.88 Because most jails are operated
by single counties or cities and most counties and cities operate just
one jail, for 95% of the nation’s nearly 3100 jail jurisdictions, the distinction between jurisdiction and facility makes no difference; where
that distinction does become relevant to the analysis below, I discuss
it.89
A more analytic problem comes from the nature of court-order
practice. Court orders have varying profiles. They can apply to a
wing of a facility (a death row, for example90), to an entire facility,91 to
a group of facilities within a jurisdiction,92 or to all the jurisdiction’s
facilities.93 A single order can govern many areas of prison life and
policy,94 one very crucial area of prison policy (say, medical care95), or
something more minor in its importance (say, telephone service96).
An order regulating the imposition of discipline or jail menus can
affect every inmate in a facility very deeply; an order setting a minimum frequency for the opportunity to shower might similarly affect
every inmate, but more shallowly. An order requiring some exemption from general policy to adherents of a minority religion97 may be
88 In six low-population states, state prison systems also include what would in other
states be jail inmates. They are: Alaska (which also has six jails), Connecticut, Delaware,
Hawaii, Rhode Island, and Vermont. See 2000 PRISON CENSUS, supra note 81, at 19.
89 The 95% figure is derived from census data. See Technical Appendix, supra note 68,
for a more thorough discussion of this issue.
90 See, e.g., Russell v. Johnson, No. 1:02-cv-00261, 2003 WL 22208029 at *6–8 (N.D.
Miss. May 21, 2003) (issuing death row injunction), aff’d in part, vacated in part sub nom.
Gates v. Cook, 376 F.3d 323 (5th Cir. 2004).
91 See, e.g., Madrid v. Gomez, 889 F. Supp. 1146, 1155, 1282–83 (N.D. Cal. 1995)
(issuing injunctive remedy governing California’s Pelican Bay State Prison).
92 See, e.g., Small v. Hunt, 858 F. Supp. 510, 523–24 (E.D.N.C. 1994) (granting modification of prior order governing conditions at minimum and medium security prisons of
North Carolina).
93 See, e.g., Armstrong v. Wilson, 124 F.3d 1019, 1021 (9th Cir. 1997) (describing district
court order governing treatment of prisoners with disabilities throughout California
Department of Corrections).
94 See, e.g., Goldsby v. Carnes, 365 F. Supp. 395, 401–07 (W.D. Mo. 1973) (approving
proposed consent judgment governing jail administration and discipline, inmate diet, establishment of law library, and medical and dental care at Jackson County Jail, in Kansas City,
Missouri).
95 See, e.g., Stipulation for Injunctive Relief, Plata v. Davis, No. C-01-1351, at 1 (N.D.
Cal. June 13, 2002) (available as document PC-CA-018-005 at http://clearinghouse.wustl.edu). Judge Thelton Henderson recently found California in continuing violation of the Plata injunction and ordered the system’s medical care put into receivership.
See Plata v. Schwarzenegger, No. C-01-1351 (N.D. Cal. Oct. 3, 2005) (findings of fact and
conclusions of law re appointment of receiver) (available as document PC-CA-018-007 at
http://clearinghouse.wustl.edu).
96 See, e.g., Washington v. Reno, 35 F.3d 1093, 1096, 1104 (6th Cir. 1994) (ordering
modification of injunction governing federal Bureau of Prisons’ telephone service).
97 See, e.g., Raymond Lee X v. Johnson, 888 F.2d 1387 (unpublished table opinion), 15
Fed. R. Serv. 3d 344, 1989 WL 126502, at *4 (4th Cir. 1989) (affirming district court ruling

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of vital importance to just a few inmates in a facility. Orders can
matter more or less to the authorities in charge of a facility, as well,
depending not only on the costs of compliance but also on the effects
on discipline, morale, and the like. But the census responses do not
expressly distinguish among orders except by subject matter.
B. State-by-State Changes over Time
To take a first cut at the issue of changes over time in court-order
incidence, this Section examines coverage within states. Table 1
presents the list of what I call “system states”—states in which censusreported court orders cover a large majority of the state’s facilities or
incarcerated population.98
I begin with system states in part because it is systemwide prison
cases that get the most scholarly attention: Nearly all the prison
court-order case studies, for example, are of systemwide orders.99
Indeed, many assessments of court-order practice seem to assume that
only systemwide cases matter. (Recall, for example, the quotation
above in which Feeley and Rubin summarized the decline of court
influence by noting that “[b]y the 1980s . . . [n]o systemwide suits had
been successful for years.”100) This is far too limited an approach:
that Virginia prison was constitutionally required to offer religiously acceptable meals to
inmate members of Nation of Islam).
98 Of necessity, picking a “cut point” for inclusion in my “system state” list of states
with a good deal of court-order regulation is a bit arbitrary. But of all the states on the list,
only Arizona jails and Illinois jails hover around the cut points. The differences in jail
court-order coverage between 1983 and 1999 in Arizona and between 1983 and 1993 in
Illinois are not terribly substantial, even though in some of those years coverage falls
above, and in others below, my system-coverage cut point.
99 See supra note 71 for a list and description of case studies.
100 Rubin & Feeley, supra note 56, at 661. As Table 1 demonstrates, the factual claim
that there were no new systemwide orders in and after the 1980s is incorrect. Among such
orders are the following: Twelve John Does v. District of Columbia, Civ. No. 80-2136
(D.D.C. Apr. 28, 1982) (memorandum order and judgment resolving conditions of confinement suit at D.C.’s Lorton prison facilities) (available as document PC-DC-008-006 at
http://clearinghouse.wustl.edu); Grubbs v. Bradley, 552 F. Supp. 1052, 1055, 1131–32 (M.D.
Tenn. 1982) (finding unconstitutional conditions of confinement at twelve Tennessee
prisons); Crain v. Bordenkircher, 342 S.E.2d 422, 425–26 (W. Va. 1986) (discussing earlier
consent decree and litigated orders at West Virginia Penitentiary); Cody v. Hillard, 599 F.
Supp. 1025, 1062 (D.S.D. 1984) (finding unconstitutional conditions of confinement in
South Dakota prison system), see also Cody v. Hillard, 304 F.3d 767 (8th Cir. 2002) (discussing subsequent procedural history); Hubert v. Ward, No. C-E-80-414-M (W.D.N.C.
1985) (decree governing thirteen farm and road camps in North Carolina) (discussed in
FEELEY & RUBIN, supra note 51, at 41 & n.106); see also Brooks v. Ward, 97 F.R.D. 529,
530–32, 535 (W.D.N.C. 1983) (discussing earlier procedural history in Hubert v. Ward);
Plyler v. Leeke, No. 3:82-0876-2, 1986 WL 84459, at *2 (D.S.C. Mar. 26, 1986) (approving
consent decree governing South Carolina prisons); Small v. Martin, No. 85-987-CRT
(E.D.N.C. Dec. 22, 1988) (settlement agreement governing living conditions in North
Carolina prisons), discussed sub nom. Small v. Hunt, 858 F. Supp. 510, 512–14 (E.D.N.C.

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TABLE 1: SYSTEMWIDE COURT ORDER COVERAGE

States with any
court orders
Alaska
Arizona
California
Connecticut
Delaware
D.C.
Florida
Georgia
Illinois
Kansas
Louisiana
Mississippi
New Hampshire
New Jersey
New Mexico
New York
North Carolina
Ohio
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
West Virginia
Total states with
systemwide orders

State Prisons (n = 51)
1984 1990 1995 2000
44
44
41
33
•

•
•

•

•

•

•
•

•
•
•
•
•

Local Jails (n = 46)
1983 1988 1993 1999
44
46
43
43

•

•

•

•

•
•

•
•

•

•

•

•

•

•

•

•

•
•
•
•
•

•
•
•
•

•
•
•
•

•

•

•

•
•
•

•

•
•

•
•

9

•
•
•
•
•
•
13

•
•
•
•
•
15

•
•
•

10

•

6

6

6

3

Note: States in which the proportion of the states’ facilities reporting court orders, or the
proportion of incarcerated population in those facilities, is greater than 70%, or in which the sum
of those proportions is at least 99%.
Source: Derived from Bureau of Justice Statistics Prison and Jail Censuses, supra note 81.

Table 1 demonstrates that systemwide coverage has never been the
norm for state experiences of correctional court-order regulation.
Even in 1995, the peak year for systemwide orders, only 37% of the
forty-one states with prison orders reported systemwide regulation.
Still, it is useful to look at systemwide orders because if the conven1994); Clarkson v. Coughlin, 898 F. Supp. 1019, 1052 (S.D.N.Y. 1995) (ordering injunction
relating to deaf inmates in New York state prison system); Dunn v. Voinovich, C1-93-0166
(S.D. Ohio July 10, 1995) (consent decree governing mental health services for mentally ill
adults in Ohio prisons) (available as document PC-OH-004-001 at http://clearinghouse.wustl.edu); Cohen & Aungst, supra note 71, at 299–327 (discussing and analyzing
events of Dunn); Hughes v. Goord, No. 97-CV-6431 (W.D.N.Y. Sept. 5, 2000) (conditional
dismissal in systemwide religion case in New York State prison system) (available as document PC-NY-040-003 at http://clearinghouse.wustl.edu).

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tional wisdom is correct anywhere, it should be correct for system
states. But in fact, even limiting inquiry to this high degree of courtorder incidence, Table 1 appears to contradict the conventional
wisdom of a decline in court-order prevalence beginning in the early
1980s. In prisons, there was actually an increase in the number and
proportion of states with systemwide court-order coverage up to the
1995 census before a sharp drop in coverage registers in the 2000
census responses. In jails, system coverage plateaued in the 1980s and
early 1990s, before a drop-off in the late 1990s.101
Table 2 broadens the inquiry beyond system states, presenting
summary statistics for all court-order regulation of jails and prisons.
It sets out the mean and median level of census-reported court-order
coverage within states for each census year.
TABLE 2: COURT-ORDER COVERAGE WITHIN STATES:
PERCENT OF EACH STATE’S INCARCERATED POPULATION
HOUSED IN ENTITIES SUBJECT TO COURT ORDERS
Year
1983
1988
1993
1999

Local Jails (n = 46)
Median
Mean
29%
34%
30%
18%

33%
34%
33%
24%

Std.
Dev.
27%
26%
27%
22%

Year
1984
1990
1995
2000

State Prisons (n = 51)
Median
Mean
34%
30%
31%
8%

35%
38%
39%
25%

Std.
Dev.
31%
32%
33%
35%

Source: Derived from Bureau of Justice Statistics Prison and Jail Censuses, supra note 81.

Table 2 thus shows the central tendencies of state experience. So, for
example, the first row’s figures show that in 1983, among the forty-six
states (forty-five plus the District of Columbia) with jail systems, on
average 33% of the state jail population was housed in jurisdictions
101 Systemwide coverage is far less common among jails because only rarely have single
court orders applied to more than one correctional jurisdiction, and jails are spread among
different jurisdictions. See, e.g., Stewart v. Winter, 669 F.2d 328, 329, 338–39 (5th Cir.
1982) (affirming denial of class action certification for case in which plaintiffs sought to sue
all eighty-two Mississippi jails); Adams v. Mathis, 458 F. Supp. 302, 304 n.1 (M.D. Ala.
1978) (noting court’s rejection of United States’ attempt, as intervenor, to expand case to
cover all of Alabama’s jails). But see Washington v. Lee, 263 F. Supp. 327, 333 (M.D. Ala.
1966) (desegregating every penal institution in Alabama), aff’d, 390 U.S. 333 (1968);
Marcera v. Chinlund, 595 F.2d 1231, 1242 (2d Cir. 1979) (ordering district court to enter
preliminary injunction against defendant class of forty-seven sheriffs), vacated on other
grounds sub nom. Lombard v. Marcera, 442 U.S. 915 (1979); Hamilton v. Morial, 644 F.2d
351, 353–54 (5th Cir. 1981) (per curiam) (allowing consolidation of all pending cases
relating to overcrowding issues involving all of Louisiana’s jails and prisons). Thus, while
systemwide coverage for prisons can signal either many orders governing different facilities
or—more often—single orders governing many facilities, systemwide coverage for jails
nearly always means the former.

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subject to court-order regulation. The corresponding figure for the
fifty states plus the District of Columbia in the 1984 prison census was
35%.102
Table 2 demonstrates two major points. First, notwithstanding
the higher incidence of systemwide coverage for prisons, court orders
are very prevalent in jails as well as prisons.103 Scholarly observers
occasionally (and probably inadvertently) neglect jails when they discuss court orders; Table 2 suggests this oversight is quite a serious one.
Second, the state-by-state summaries in Table 2 confirm Table 1’s
basic message by showing essential stability in mean and median
court-order incidence from the early 1980s until the last period, at
which point there is a dramatic drop in both the mean and median
coverage figures. A plateau might feel like a decline after a prior
steep increase, which must have characterized the experience of both
jails and prisons between 1970 and 1983, when the BJS first asked its
court-order questions. Perhaps this is among the factors that has contributed to the erroneous conventional wisdom.
The apparent stability in state experience prior to the late 1990s
raises the question of whether that stability is real, or whether what is
actually occurring is the simultaneous entry and expiration of orders
in different states. Figure 1, below, demonstrates that both are true.
Figure 1’s panel of histograms shows the changes in the percentage of
incarcerated population within each state subject to court order. For
example, the first row sets out the within-state changes observable by
comparing the first census that asked about court orders to the
second, for both jails and prisons. The first two rows provide still further confirmation of stability in the 1980s and early 1990s: Nearly all
the states experienced some change in proportion of population covered by court orders from the mid-1980s to the mid-1990s, but most
102 Note that direct comparisons of the population-weighted incidence level between
jails and prisons are a bit misleading because the prison data are facility-level but the jail
data are jurisdiction-level. Jurisdictional reporting causes Table 2 to understate slightly the
incidence of court orders by individual jail facility (because jails in multi-facility jurisdictions are more likely than jails in single-facility jurisdictions to report court orders), and to
overstate more significantly the incidence of court orders by jail population. The magnitude of this overstatement appears to be about 6% to 8% of national jail population. I am
able to quantify the overstatement in the years prior to 1999, when facility-level data are
available for jails. In each of the three prior census years, the jail population in facilities
with court orders is six to eight percentage points less than what Table 2 reports, i.e., the
jail population in jurisdictions with court orders. See Technical Appendix, supra note 68,
for more details.
103 As one would expect, given that jails are county and city institutions, and prisons are
state institutions, the state-by-state experience of prison court-order coverage is more
variant. This is the meaning of the larger standard deviations for prisons in Table 2 and
also contributes to Table 1’s imbalance between jails and prisons.

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states experienced quite small change, and the states experiencing
decreases in coverage were balanced by a similar number of states
experiencing increases. Moreover, there is no statistically significant
difference between the 1983–1988 data and the 1988–1993 data for
jails, and likewise for the corresponding data for prisons.104 Thus the
emerging story holds: The plateau continued from the early 1980s
until the mid-1990s.
FIGURE 1: CHANGE BY STATE IN PROPORTION OF INCARCERATED
POPULATION HOUSED IN ENTITIES SUBJECT TO
COURT ORDER

.3
.2
.1
0

0

.1

.2

.3

.4

Prison, 1990

.4

Jail, 1988

-1

-.5

0

.5

1

-1

0

.5

1

.4
.3
.2
.1
0

.1

.2

.3

.4

Prison, 1995

0

Fraction of states

Jail, 1993

-.5

-1

-.5

0

.5

1

-1

0

.5

1

.3
.2
.1
0

0

.1

.2

.3

.4

Prison, 2000

.4

Jail, 1999

-.5

-1

-.5

0

.5

1

-1

-.5

0

.5

1

Intrastate change in court-order coverage
Source: Derived from Bureau of Justices Statistics Prison and
Jail Censuses, supra note 81.
104 In a paired t-test, the distributions of facility-order incidence by state are not demonstrably different across any years (the p-values on the test are all greater than .25, and
usually much greater). The population-weighted order incidence by state presents a statistically significant difference only between the penultimate and the final period (p-value for
jails = .03, p-value for prisons < .001). Full results are presented in this Article’s Technical
Appendix, supra note 68.

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As hypothesized, however, the situation changes notably between
the last pre-PLRA data point and the single available post-PLRA
data point. As one would expect from Tables 1 and 2, Figure 1’s third
row of graphs shows that in both jails and prisons, the within-state
changes become negative and much larger after the mid-1990s. That
is, many more states experienced contraction in court-order coverage
in both jail and prison populations than experienced expansion. This
is true for both small and large increases, and testing confirms that
these differences are statistically significant.105
Figure 2 elaborates this last point, showing in more detail the difference between the mid-1990s and the 1999/2000 datapoints for jails
and prisons.106 Like Figure 1, it is a panel of histograms; each bin
groups states by their degree of court-order coverage; the y-axis marks
the total percentage of states in that bin. For example, in the upper
right quadrant, which describes prisons in 1995, census reports for
slightly more than 20% of states indicated that between 0 and 10% of
those states’ prison population was housed in entities subject to courtorder regulation. But looking at the lower right quadrant, it appears
that by 2000 things had changed drastically: Census reports for a
majority of state prison systems indicated that only between 0 and
10% of those states’ incarcerated population was housed in prisons
subject to court-order regulation. A similar trend is evident in the jail
histograms as well, though it is less stark. In prisons, but not jails, the
decrease of court-order regulation appears not to come primarily from
the most heavily regulated bins. Rather, the trend has been to empty
out the moderate coverage bins, increasing the degree of variance
among states. (This is consistent with the results in Table 2 and Figure
1: In both we see greater variance in 2000 than in previous years.107)

105

See supra note 104.
This Article’s Technical Appendix, supra note 68, includes all eight histograms rather
than just the four that appear in Figure 2. The first six do not, visually, appear to vary over
time, an impression confirmed by statistical testing. In a t-test, unpaired (because the test
is already of differences between years) with unequal variances, the mean change in population-weighted order incidence by state presents a statistically significant difference only
between the penultimate and the final period (p-value for jails = .01, p-value for prisons =
.05). In prisons, the change in standard deviation (in both the pictured populationweighted figures and the unweighted figures) is highly significant over the same time (pvalue < .001); for jails, there is no discernible change in variance in the populationweighted figures, but the unweighted version does have such a change (p = .03).
107 In Table 2, comparing 1995 with 2000, the median dropped a great deal more than
the mean, and the standard deviation remained as high as it had been with higher overall
coverage figures, both signaling increased variance among state prison systems.
106

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FIGURE 2: DISTRIBUTION BY STATE OF WITHIN-STATE COURT
ORDER POPULATION COVERAGE

.4
.2
0

0
0

.5

1

0

.5

1

.2
0

0

.2

.4

.6

Prison, 2000

.6

Jail, 1999

.4

Fraction of states

.2

.4

.6

Prison, 1995

.6

Jail, 1993

0

.5

1

0

.5

1

Fraction of state’s prison population under court order

Source: Derived from Bureau of Justices Statistics Prison and
Jail Censuses, supra note 81.

Altogether, then, the state-by-state story is clear. Within states,
the period from the 1980s to the mid-1990s was marked by essential
continuity. States were similarly likely at each datapoint in the period
to face court-order regulation of a large percentage of their prison and
jail population; within each state, there tended to be only a small
degree of change in the level of court-order coverage. But after the
mid-1990s the BJS censuses report a sea change—a stark disruption in
the long-lived plateau of court-order regulation. Many fewer states
report anything more than minimal court-order coverage of their
prison population, and coverage is down in jails as well. Moreover,
the above data suggest that the final period is characterized by newly
divergent experiences among states; a number of states continue to
report complete court-order coverage of their prisons, while the
majority report no or nearly no court orders. There are fewer than
ever in the middle.
C. Nationwide Statistics on the Volume of Court-Order Regulation
I next consider national rather than state-by-state statistics to
look more closely at various features of the orders. This Section first
examines what appear to be extremely minor changes in court-order
incidence between the mid-1990s and after, but finds that appearances
are misleading. In fact, the nationwide data are dominated by outliers

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in the final period. In addition, I note the consistent correlation
between facility size and court-order incidence, and discuss what
might underlie that correlation. Finally, I examine court-order incidence in individual facilities over time, looking at the proportion of
facilities reporting new regulation versus those reporting continuing
regulation.
1. The Increasing Role of Outliers
Table 3 begins with summary information about the prevalence of
court orders over time.
TABLE 3: CHANGING INCIDENCE
(a)

Year
Local
Jails

1983
1988
1993
1999

State
Prisons

1984
1990
1995
2000
2000 w/o
Ohio, NY

OF

COURT ORDERS

(b)
% of population
housed in facilities
w/ orders

(c)

(d)

Total
facilities

% of facilities
w/ orders

227,541
336,017
466,155
607,978

51%
50%
49%
34%

3338
3316
3268
3365

15%
14%
16%
15%

390,334
635,974
909,546
1,170,171
1,048,906

42%
35%
39%
39%
32%

903
1207
1375
1562
1459

24%
27%
27%
23%
17%

Total
population

Source: Derived from Bureau of Justice Statistics, Prison and Jail Censuses, supra note 81.

The prior tables and figures have presented data about courtorder incidence weighted by population. It is also useful to think
about court-order incidence by facility (in other words, weighting
large and small facilities equally). Like the earlier tables and figures,
Table 3’s column (b) sets out order-incidence rates by population for
both prisons and jails.108 Column (d) augments this measure by
showing the percentage of facilities that report court orders.
Even more than the earlier tables and figures, Table 3 demonstrates remarkable stability during the covered period. Once again,
there is scant sign that the early 1980s were court orders’ heyday.
Rather, for both jails and prisons, the orders have continued to apply
to a large portion of facilities—and an even larger portion of
108 That is, it sets out the percentage of incarcerated population housed in correctional
facilities (or, more precisely, in correctional facilities for prisons, jurisdictions for jails) that
report court orders.

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inmates—through the early 1990s and even beyond.109 Indeed, Table
3’s apparent stability extends to the present, unlike earlier tables. The
last period, after the PLRA’s enactment, does not seem very different
from the earlier periods: Comparing court-order incidence in the mid1990s to the final figures, in both columns (b) and (d), the changes
appear extremely small except for the jail population figures (in
column (b)).
Does this mean that the observers who expected the PLRA to
have little impact were right? No. Recall from above that in the last
reported period, state experiences were increasingly divergent.
Because Table 3 does not group results by state, the greater variance
could derive from outlier states dominating the data. And sure
enough, examination of the raw data reveals that two states—Ohio
and New York—dominate the prison figures in 2000. Every prison in
these states reported a court order—in New York, about religion and
disability,110 and in Ohio, about mental health.111 When these states
are omitted, things look very different. Table 3’s final row shows that
with New York and Ohio excluded, the incidence of court orders in
the rest of the country’s prisons declined by over one-third from 1995
to 2000, and the population-weighted rate declined by nearly onefifth, notwithstanding the increasing average population of the
nation’s prisons.112 There are no similar outlier states in the earlier
periods—in which, recall, the state-level variance was lower. Dropping states is not a satisfactory analysis, of course. But the insight that
just two states play such an outsize role in national figures in 2000
demonstrates the importance of the observed increased variance in
the most recent period. Thus, even after the enactment of the PLRA,
court orders remain operative for a large minority of jail and prison
inmates, and the national experience has become less uniform.
109 Statistical analysis confirms a large degree of continuity; most of the entity-level differences over time, in column (b), are not statistically significant. Using a two-sample test
of proportions, in jails only between 1988 and 1993 are the differences even barely significant (p = .05), and even then, as Table 1 sets out, they are small (less than a 2% shift). In
prisons, only between 1995 and 2000 are the differences significant (p = .003), and, again as
set out in Table 3, they are larger (a nearly 5% shift).
110 See Clarkson v. Coughlin, 898 F. Supp. 1019, 1052 (S.D.N.Y. 1995) (ordering injunction relating to deaf inmates); Hughes v. Goord, No. 97-CV-6431 (W.D.N.Y. Sept. 5, 2000)
(ordering conditional dismissal in religion case) (available as document PC-NY-040-003 at
http://clearinghouse.wustl.edu).
111 See Dunn v. Voinovich, No. C1-93-0166 (S.D. Ohio, July 10, 1995) (consent decree
governing mental health services for mentally ill adults in Ohio prisons) (available as document PC-OH-004-001 at http://clearinghouse.wustl.edu); see also Cohen & Aungst, supra
note 71, 299–327 (describing events in Dunn v. Voinovich).
112 If New York and Ohio are taken out of the dataset for 1995 as well as 2000, the
change between the two periods is even greater.

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2. The Size Effect
The most important new insight from Table 3 is a glimpse of what
I believe is a basic (and underexamined) feature of correctional courtorder practice: Court orders are more common in large facilities than
in small. The facility-level figures in column (b) are, in each year for
both jails and prisons, a good deal smaller than the population figures
in column (d). That is, court orders affect facilities that, among them,
house a disproportionately large inmate population. This “size effect”
makes intuitive sense for several reasons. First, regardless of whether
judges, inmates, or lawyers are the driving force behind cases, it takes
a lot of work to mobilize the litigation apparatus to obtain courtenforceable remedies against correctional administrators. It is almost
as much work to put together a case involving a forty-bed facility as
one involving a four-hundred-bed facility. Therefore, at least for
judges and lawyers, one would expect to see a decided focus on large
institutions, where the payoff of that work is greater. Second, the
larger an institution, the more people are available to complain about
it—and it only takes one to make a lawsuit. Third, very much for jails
and somewhat for prisons, large institutions tend to be located near
population centers, which have more lawyers to bring cases (and perhaps more liberal lawyers and even judges,113 who are more sympathetic to the issues). Finally, perhaps large institutions have worse
conditions, though evaluation of this possibility is far beyond the
scope of this paper. In any event, we learn from Table 3 that the size
effect, whatever its source, is part of the court-order story in each and
every year of census data.114 Figure 3 illustrates this size effect in 1993
(for jails) and in 1995 (for prisons).115

113 A nice illustration of this point is provided by a map tabulating election results from
the 2004 presidential election; Democratic voting is located in high-population-density
counties. Robert J. Vanderbei, Election 2004 Results, http://www.princeton.edu/~rvdb/
JAVA/election2004 (last visited Mar. 27, 2006) (depicting county-by-county election return
data).
114 Fancier statistical testing confirms this point: I estimated logistic regressions of
court-order incidence as a function of year and size (with squared and cubed terms for
flexibility); each of the coefficients, except for one of the cubed terms, is statistically significantly different from 0, and the size effect is positive in each year. See Technical Appendix,
supra note 68.
115 Figure 3 shows the prediction from an estimated logistic regression of court-order
incidence as a function of year and size (with squared and cubed terms for flexibility); the
estimates are generated separately for jails and prisons. The figure presents the results
using a log scale for the x-axis because that captures visually something of the skew in
facility size.

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0

Estimated Order Probability
.2
.4
.6
.8

1

FIGURE 3: ESTIMATED PROBABILITY OF COURT ORDER, GIVEN
FACILITY SIZE

50

200
Facility population

prisons in 1995

500

1000

3000

10,000

jails in 1993

Source: Derived from Bureau of Justices Statistics Prison and Jail Censuses, supra note 81.

3. New and Old Regulation
Finally, it is worth considering whether the evident plateau in
court-order incidence occurred not because of the ongoing importance of injunctive litigation but because old orders were lingering on
years past their real regulatory impact. Figure 4 addresses this issue,
augmenting Table 3 by differentiating between continuing and new
regulation.116 It separates by shade newly court-order-regulated facilities from those facilities that reported an order in the prior period.117
Figure 4’s first, pale grey columns in each year grouping show
court-order incidence by facility for prisons and by jurisdiction for
jails. The second, black columns show court-order incidence by population. The 1980s–1990s plateau is visually evident in both the grey
and black columns prior to 1995. What Figure 4 adds is a distinction
between old court orders, which might be lingering years past their
usefulness, and new ones, whose entry, if common, might better
demonstrate the ongoing relevance of court-order practice. Newlyregulated facilities are cross-hatched and positioned at the top of the
columns; those facilities with continuing regulation are solid and at the
bottom.
116 There is no way to tell definitively without docket information if a reported order is
part of the same case as a prior order governing the same facility. Even where orders
change subjects they can often be part of just one litigation as it waxes and wanes. Alternatively, an order in one litigation can continue in effect while an order in another litigation first joins it and is then terminated.
117 Because 1983 and 1984 were the first years in which the BJS asked its court order
question, the figure presents all the orders in those years as “new” to the dataset.

R

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FIGURE 4: JAIL

AND

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PRISON COURT ORDER INCIDENCE
Jails

0.6

Proportion of all reporting

0.5

0.4

0.3

0.2

0.1

0
1983

1988

1993

1999

1995

2000

Prisons
0.6

Proportion of all reporting

0.5

0.4

0.3

0.2

0.1

0

1984

1990

Facilities with new regulation
Facilities with old regulation

Population with new regulation
Population with old regulation

Source: Derived from Bureau of Justices Statistics Prison and Jail Censuses, supra note 81.

Figure 4’s new-versus-continuing regulation detail allows more
nuanced assessment of the claim of late-1980s and early-1990s decline.
The solid portions of the grey columns represent the percentage of
facilities with court-order regulation in both a given census year and
the prior census; the cross-hatched portions represent those facilities

R

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whose report of regulation via court order was new. No decline
appears. There are, to the contrary, many newly-regulated facilities in
each year after the first, and no evidence of a 1980s/early-1990s
decline in that number.
The story from the black, population-weighted, columns is more
mixed. In prisons, there is no apparent decline. But in jails, the black
columns show if not a decline then at least a remarkably low incidence
in the population housed in newly-regulated facilities. (That is, the
black cross-hatched portions of the columns are very small.) Indeed,
only about one-sixth of the population subject to court orders in any
year covered by the census is housed in a newly-regulated jail. Is the
conventional wisdom regarding the decline in court orders correct as
to jails, then? Were the orders governing the larger court-order-regulated jails from the mid-1980s through the 1990s mere relics of a
bygone era of judicial activism? I think not, for two reasons. First,
across both jails and prisons new incidence of orders tends to be
underreported in Figure 4, because the census data are organized by
facility, not by order. That is, just because a facility reported a court
order in two censuses in a row does not mean that it did not become
subject to a new order or orders. It could well be that many of the
facilities in question were regulated by different court orders in the
prior periods. Indeed, given the difference between the grey and the
black columns, this seems probable. The more plausible explanation
for the small size of the population in newly regulated facilities—
though the point is untestable given this dataset—is that the very large
jails were highly unlikely in the 1980s and 1990s to become newly subject to a court order not because court-order practice was decrepit but
rather because the jails were so likely to have court orders previously.
By 1983, the first year in which the BJS asked jails about court orders,
60% of jails in the top 4 percentile in terms of size118 reported that
they were governed by such an order; in the very top percentile, 80%
of jails119 reported orders. The point is that in these very large jurisdictions, which dominate the population-weighted black columns,
prior regulation is so common that it cannot be used as a proxy for
prior regulation by the same order. The grey columns, which weight
every facility equally instead of giving such heavy weight to very large
facilities, suffer less from this phenomenon, and therefore seem likely
to present a more accurate picture of the actual proportion of old and
new orders.
118 These were the 121 jurisdictions that housed more than 320 inmates; between them,
they housed over 127,000 inmates, 56% of the nation’s total jail inmates.
119 These were the thirty jurisdictions that housed 997 or more inmates; between them,
they housed over 77,000 inmates, about 34% of the nation’s total local jail inmates.

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Moreover, even if every order in a facility that reported an order
in the prior period truly were old, there are reasons to believe that
these already-extant orders were probably not mere relics. First, the
orders remained salient enough to prompt administrators to check off
the relevant census boxes. Second, for each of the two census periods
in which the analysis is possible120 only about 16% of the jurisdictions
reporting old court orders repeat precisely the same subject-matter
description; the rest of the records show at least one and nearly always
two or more changes in subject matter. Thus, it seems at least probable that even if these were indeed old orders, they were changing
their terms over time—a sign of their continuing regulatory
importance.
D. Explanations for the Mid- to Late-1990s Shift in the Volume of
Court-Order Regulation
The prior Sections have shown that there was stability in the
volume of court-order regulation from the mid-1980s to the mid1990s, followed by a major change. The census data have demonstrated as much, but they cannot explain why this contraction
occurred. In this Section, I analyze potential explanations. The explanation I find most persuasive is ready at hand: The Prison Litigation
Reform Act was enacted in 1996, after the 1993 and 1995 jail and
prison censuses and before those in 1999 and 2000. There was a good
deal of litigation over the PLRA’s constitutionality in its first two
years, but one would expect the statute’s effects, if any, to begin to
emerge by 1997 or 1998—perfect timing for their appearance in the
1999 and 2000 censuses.
Four provisions of the PLRA seem extremely relevant. The first
allows defendants unhappy with a court order that is older than two
years to seek “immediate termination,” which is to be granted unless
the order “remains necessary” to correct a “current and ongoing” violation of federal rights. The second provision grants defendants an
“automatic stay of extant orders,” thirty to ninety days after immediate termination proceedings are initiated. The third requires
inmates to utilize administrative grievance channels prior to filing a
suit in federal court. The fourth limits the availability of attorneys’
fees for lawyers who successfully represent inmates in civil rights
cases.
120 In 1983, the census did not ask about order subject matter, so no analysis of changing
subject matter is possible until 1993, the second time the census gathered the relevant data.
See infra note 179 for a description of the order subject matter categories addressed in
each census.

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After discussing these four PLRA provisions, as well as another
less important provision, I examine three competing explanations that
do not involve the PLRA: increasing conservativism of the federal
bench, doctrinal innovations of the mid-1990s restricting injunctive
remedies, and declining funding for inmates’ advocates. These are the
lead explanations scholars have offered in support of the conventional
wisdom of a 1980s–1990s decline in public law litigation. As already
seen, the census data undermine that claimed decline, at least for jail
and prison court orders. But can those same phenomena explain
instead the decline that does appear in census data, in the mid- to late1990s? As I discuss below, I do not think they are the major levers of
change. Both because of its timing and content, the PLRA is a far
more persuasive explanation.
1. The PLRA and the Declining Volume of Court-Order Regulation
The correctional censuses do not include information on litigation
and therefore shed no light on the causes of the decline in court order
incidence. But court opinion after opinion states that it is the PLRA
that created the opportunity for defendants to seek an end to old
court orders.121 And many—though by no means all—participants
report the PLRA as a dominant reason that orders have become not
only shorter-lived but also harder for plaintiffs to obtain.122 I consider
in turn four provisions of the PLRA—those governing immediate termination, the automatic stay provision, administrative exhaustion, and
attorneys’ fees.
Immediate termination. Before the PLRA’s enactment, the law
on prospective relief in civil rights cases was that such relief would
remain in effect until defendants fully complied with the judgment
and somehow satisfied the court (or the plaintiffs, who could choose
not to oppose the relevant motion) that they were unlikely to
relapse.123 The PLRA opened prison and jail orders to far more ready
challenge. The statute entitles defendants to “immediate termination”
121 There are dozens of opinions on the PLRA termination provisions that arose in a
proceeding where defendants sought to terminate existing court orders. See, e.g., Inmates
of Suffolk County Jail v. Rouse, 129 F.3d 649, 663 (1st Cir. 1997) (approving termination of
decree governing Suffolk County Jail in Boston); Dougan v. Singletary, 129 F.3d 1424, 1427
(11th Cir. 1997) (remanding for termination of order concerning Florida death row conditions); Gavin v. Branstad, 122 F.3d 1081, 1083, 1092 (8th Cir. 1997) (remanding for consideration of termination motion relating to Iowa State Prison); Plyler v. Moore, 100 F.3d 365,
368, 375 (4th Cir. 1996) (affirming termination of order governing South Carolina prisons).
122 See Telephone Interview with Elizabeth Alexander, Dir., ACLU Nat’l Prison Project
(Mar. 29, 2001).
123 See Louisiana v. United States, 380 U.S. 145, 154 (1965) (remarking that courts have
“not merely the power but the duty to render a decree which will so far as possible eliminate the [unlawful] effects of the past as well as bar like [illegality] in the future”).

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of any prospective relief two years after that relief is granted, unless
the court finds “current and ongoing violation” of federal rights. And
defendants can renew their request for termination yearly.124 Because
a very large majority of correctional court orders are more than two
years old, the PLRA allows most counties, cities, or states unhappy
with an order to simply move to terminate it. Sure enough, between
1996 and 2000, a large number of jurisdictions filed termination
motions.125 Plaintiffs’ counsel were successful in defending some of
the old orders, for a time by attacking the PLRA’s constitutionality
(until the Supreme Court effectively decided the issue126), and also by
litigating the ongoing need for conditions remedies.127 Inevitably,
however, plaintiffs lost some of those contests, and the victories they
achieved came at the cost of new projects. Thus, by forcing inmates’
advocates into rear-guard actions that were only partly successful and
that took the place of assaults on additional targets, the PLRA’s
immediate termination provision both shrank the stock of old orders
and slowed the flow of new ones.
Automatic stay. Not only does the PLRA empower defendants to
control the litigation agenda, it simultaneously accelerates the termination litigation in a way that sharply disadvantages plaintiffs.
Between one and three months after a defendant moves to terminate
relief, the order is automatically “stayed” until the court reaches its
termination decision.128 This has two important effects. First, the
speed of the decision clock gives the defendant an important advantage: Defendants get to decide when the race will begin, and they can
pick the start date with an eye to their own convenience, or perhaps
the inconvenience of opposing counsel.129 The second advantage
124

18 U.S.C. § 3626(b)(1) (2000).
See, e.g., supra note 121.
126 The constitutionality of the immediate termination provision followed a fortiori from
the Court’s decision in Miller v. French, 530 U.S. 327, 350 (2000), which upheld the constitutionality of the automatic stay provision in 18 U.S.C. § 3626(e)(2) (2000).
127 In Ruiz, for example, the plaintiffs simultaneously defended on both law and facts;
they first won on both. Ruiz v. Johnson, 37 F. Supp. 2d 855, 939 (S.D. Tex. 1999) (finding
constitutional violations in conditions of confinement in Texas prison system, and holding
PLRA unconstitutional). After the statutory challenge failed on appeal, Ruiz v. United
States, 243 F.3d 941, 945 (5th Cir. 2001), the plaintiffs litigated conditions for three more
years. See Ruiz v. Estelle, No. 4:78-cv-00987 (S.D. Tex. June 17, 2002) (docket entry 9015,
granting termination motion) (docket available via PACER and as document PC-TX-003000 at http://clearinghouse.wustl.edu).
128 18 U.S.C. § 3626(e) (2000).
129 When I was a lawyer for the Department of Justice, for example, I recall that one
state filed a dozen such motions—one in each of its corrections cases—on July 3, and
served them by mail. The lead lawyer on the case in which I was involved did not open the
motion until after a long weekend and several days vacation, about a week later. On a
thirty-day timeline, that lost week was very precious. (Not until later in 1997 were district
125

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defendants gained by enactment of the automatic stay is more substantive. A termination motion effectively puts plaintiffs to their
proof on the ongoing necessity of court-order regulation. Assembling
that proof in just thirty days can be extremely difficult, as it requires
both knowledge of specific harmful events at a set of closed facilities
and expert testimony about the connection between those events and
claimed operational failures.
Administrative exhaustion. Prior to the PLRA, inmates seeking
to file lawsuits generally were not required to first run their complaints through whatever grievance system their incarcerating
authority had implemented.130 The PLRA changed that rule: Now,
prior to bringing their lawsuits, inmates must make their complaints to
prison or jail authorities using available administrative grievance procedures.131 Plaintiffs’ failure to exhaust can lead to dismissal of their
cases.132 The exhaustion rule establishes an extremely difficult hurdle
for many of the inmates who bring damage actions, usually without
courts granted authority to suspend operation of the automatic stay for an additional 60
days. See Prison Litigation Reform Act, Pub. L. No. 104-134, § 802, 110 Stat. 1321-66,
1321-68 to 1321-69 (1996), amended by Pub. L. No. 105-119, § 123, 111 Stat. 2470 (1997)
(codified as amended at 18 U.S.C. § 3626(e)(3) (2000)).)
130 See McCarthy v. Madigan, 503 U.S. 140, 149–50 (1992) (exhaustion of federal
Bureau of Prisons grievance processes not required for filing civil rights action); Patsy v.
Bd. of Regents, 457 U.S. 496, 502 (1982) (exhaustion of state administrative processes not
required prior to initiation of action under section 1983). Under the Civil Rights of Institutionalized Persons Act (CRIPA), if district courts deemed exhaustion “appropriate and in
the interests of justice,” incarcerating authorities who had obtained federal certification of
their grievance system as “plain, speedy, and effective” could insist that civil rights actions
brought by inmates be stayed pending exhaustion. 42 U.S.C. § 1997e(a)(1) (1988) (superseded by PLRA, Pub. L. No. 104-134, § 803(d), 110 Stat. 1321, 1321–71); see also Donald P.
Lay, Exhaustion of Grievance Procedures for State Prisoners Under § 1997e of the Civil
Rights Act, 71 IOWA L. REV. 935, 937–42 (1986) (discussing CRIPA exhaustion rules).
With so small a prize (and because they objected to the statutory certification requirements), few correctional jurisdictions bothered to seek certification. See JUDICIAL CONFERENCE OF THE U. S., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE 49 (1990)
(explaining that “few states have sought and obtained certification under this statute”);
Note, Resolving Prisoners’ Grievances Out of Court: 42 U.S.C. § 1997e, 104 HARV. L. REV.
1309, 1310–11 (1991) (discussing certification procedure and Federal Courts Study Committee’s recommendations for revision).
131 42 U.S.C. § 1997e(a) (2000).
132 It is by no means clear that dismissal is what ought to follow flawed attempts to
exhaust. Exhaustion can equally be a requirement governing the timing of judicial review,
not its ultimate availability. Some courts have, indeed, applied this general approach to
the PLRA. See Ngo v. Woodford, 403 F.3d 620, 631 (9th Cir. 2005) (holding judicial review
of inmates’ claim available notwithstanding even untimely administrative appeal); Thomas
v. Woolum, 337 F.3d 720, 723 (6th Cir. 2003) (same). But see, e.g., Johnson v. Meadows,
418 F.3d 1152, 1154, 1157 (11th Cir. 2005) (holding PLRA’s exhaustion requirement akin
to procedural default rule, and cataloging cases similarly resolved by other circuits). The
Supreme Court will resolve this issue soon. See Woodford v. Ngo, 403 F.3d 620 (9th Cir.
2005), cert. granted, 126 S.Ct. 647 (2005) (No. 05-416).

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counsel, because they are frequently unable to navigate cumbersome
and confusing grievance procedures.133 This problem applies in
injunctive litigation with somewhat diminished force, because injunctive cases have lawyers. Nonetheless, advocates complain that the
exhaustion rule poses extremely difficult challenges, because it takes
time for lawyers to get involved and grievance systems can set very
tight deadlines for inmates. In Kentucky’s system, for example, a
grievance is timely only if filed within five working days of the grieved
incident.134
Attorneys’ fees limitations. The PLRA’s limitations on attorneys’
fees have also been at least somewhat important. As in many sections
of the civil rights bar, inmates’ advocates financed a good deal of their
activity prior to the PLRA by the fee-shifting that accompanied successful litigation.135 The PLRA drastically limited the rates that advocates could obtain, setting the maximum rate at 150% of the rate
“established”136 for payment of criminal defense lawyers. At the time
of the statute’s passage, this meant a maximum hourly rate of $112.50,
as opposed to the several hundred dollars per hour experienced lawyers had previously been paid.137 Those higher fees had typically been

133 See Schlanger, Inmate Litigation, supra note 7, at 1649–54 (discussing difficulties
exhaustion requirement presents to inmate litigants).
134 See Kentucky Corrections Policies & Procedures No. 14.6, Sept. 15, 2004, at 8. This
and other state grievance policies have been posted by Yale Law School’s Jerome N. Frank
Legal Services Organization at http://www.law.yale.edu/outside/html/Legal_Services/lsoWoodford-v-Ngo.htm (last visited Mar. 28, 2006). They are described in Brief of the
Jerome N. Frank Legal Services Organization of the Yale Law School as Amicus Curiae in
Support of Respondent, Appendix, Woodford v. Ngo, No. 05-416, 2006 WL 304573 (9th
Cir. Feb. 2, 2006), available at http://www.law.yale.edu/outside/pdf/centers/woodford_ngo/
Woodford_Amicus_brief.pdf.
135 See 42 U.S.C. § 1988(b) (2000).
136 42 U.S.C. § 1997e(d)(3) (2000) (authorizing payment of successful plaintiffs’ counsel
at “the hourly rate established under section 3006A of title 18, for payment of courtappointed [criminal defense] counsel”). There are currently two competing interpretations
of the “established” rate—the rate authorized for criminal defense lawyers by the federal
Judicial Conference, and the (sometimes lower) rate actually paid in districts with budgetary shortfalls. Compare Webb v. Ada County, 285 F.3d 829, 838–39 (9th Cir. 2002)
(holding that authorized rate is “established”), cert. denied, 537 U.S. 948 (2002), with
Hernandez v. Kalinowski, 146 F.3d 196, 201 (3d Cir. 1998) (holding that rate authorized
but not “implemented” because of budgetary constraints was not “established” rate).
137 See, e.g., Madrid v. Gomez, 190 F.3d 990, 993 n.2 (9th Cir. 1999). The court stated:
Thus, when the PLRA applies, the maximum allowable rate is $112.50 per
hour, as compared to the rates authorized by the district court, which ranged
from $155 per hour to $305 per hour. The two attorneys most involved in the
remedial phase of this case charged $305 per hour and $290 per hour,
respectively.

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used to finance litigation outlays, and their cutback has caused advocacy organizations some financial strain.138
Red herring: The PLRA’s limitation on entry of prospective relief.
Finally, the PLRA has a provision that might seem important in
causing the decline in reported court-order coverage. I suspect, however, that it is not. The statute’s prospective relief limitations dictate
that federal courts, and state courts hearing federal claims, may
neither grant nor approve any relief other than money damages,
“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.”139 Application of these limits to litigated relief was
not a major change from prior law.140 But, of course, most cases
settle, and application to settlements, by contrast, was a quite startling
innovation.141 Indeed, it might have been expected that few defendants would settle a case on such terms (particularly if the findings
were to be given preclusive effect in subsequent damage action litigation). It turns out, however, that the institution of settlement is
extremely resilient. The statute expressly allows parties two methods
to avoid application of the provision. They may negotiate “private
settlement agreement[s],” enforceable in state court as contracts.142
Or they may agree to a conditional dismissal of a federal lawsuit, upon
satisfaction of some negotiated terms; if the defendant fails to comply,
the court reinstates the case, though it cannot enforce the agreement.143 Probably even more prevalent, however, is a magic words
strategy: Participants report that “[i]n practice, parties who wish to

138 E-mail from Elizabeth Alexander, Dir., ACLU Nat’l Prison Project, to author (Oct.
22, 2005) (on file with the New York University Law Review).
139 18 U.S.C. § 3626(a) (2000).
140 See Lewis v. Casey, 518 U.S. 343, 357 (1996) (“The remedy must of course be limited
to the inadequacy that produced the injury in fact that the plaintiff has established.”);
Milliken v. Bradley, 433 U.S. 267, 280 (1977) (“The remedy must therefore be related to
the condition alleged to offend the constitution . . . .”) (internal quotation marks and citation omitted); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (“[T]he
nature of the violation determines the scope of the remedy.”); see also H.R. Rep. 104-21, at
24 n.2 (1995) (commenting, on bill provision that ultimately became 18 U.S.C. 3626(a), that
“dictates of the provision are not a departure from current jurisprudence concerning
injunctive relief”).
141 See Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 389 (1992) (explaining that
injunctive settlements may extend well past what might permissibly be entered in litigated
decrees).
142 18 U.S.C. § 3626(c)(2)(B) (2000).
143 18 U.S.C. § 3626(c)(2)(A) (2000); see also FED. R. CIV. P. 41(a) (governing voluntary
dismissals, including conditional dismissals).

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settle agree to these findings and the court approves them.”144 The
PLRA’s prospective relief limit may be undermining the effectiveness
of court-order regulation, but it is unlikely that it is severely undermining the very existence of court orders.
Next, I canvass non-PLRA explanations for the decline in court
orders reported in the last census.
2. Increasing Conservativism of the Federal Bench
It stands to reason that the more conservative a judge, the less
inclined that judge would be to enter or continue a pro-inmate injunctive order over the objection of defendant prison or jail officials.
After all, more conservative judges are less inclined to grant relief in
civil rights cases in general, and less inclined to find for criminal
defendants;145 prison and jail litigation combine the two. So an
increasingly conservative federal bench could help to explain the
decline in the volume of correctional court-order regulation. And
indeed, the federal judiciary did grow increasingly conservative during
the Reagan and Bush I years, as more and more Republicans were
appointed. By the close of the first Bush presidency at the end of
1992, 76% of active district judges and 72% of active court of appeals
judges had been appointed by Republicans.146 Using active judges’
“nominate scores” (a measure of ideological predisposition147 that is
144 John Boston, The Prison Litigation Reform Act, in LITIGATION, at 686, 703 (PLI
Litig. & Admin. Practice, Course Handbook Series No. 640, 2000); see also John Boston,
The Prison Litigation Reform Act: The New Face Of Court Stripping, 67 BROOK. L. REV.
429, 447 n.69 (citing, as examples of settlements where defendants waived right to move to
terminate, Stipulation and Judgment at 6, Prison Legal News v. Crawford, No. CV-N-000373-HDM-RAM (D. Nev. Sept. 27, 2000) (agreeing not to seek to terminate for five
years) (available as document PC-NV-007-001 at http://clearinghouse.wustl.edu); Stipulation and Order at 2–3, Duffy v. Riveland, Nos. C92-1596R & C93-637R (W.D. Wash. Aug.
31, 1998) (agreeing not to challenge settlement for four years) (available as document PCWA-003-010 at http://clearinghouse.wustl.edu)).
145 Cf. C.K. ROWLAND & ROBERT A. CARP, POLITICS AND JUDGMENT IN FEDERAL DISTRICT COURTS 37 tbls.2, 3, 4, 5 & 6 (identifying persistent voting differences from 1969 to
1985 between district court judges nominated by Republican and Democratic Presidents in
civil rights and liberties cases, and in criminal justice cases). Although the party of the
appointing President has been criticized recently as an insufficiently nuanced proxy for
judicial ideology, voting behavior studies confirm that since the Johnson presidency, district court appointees of each Republican president have rendered fewer liberal decisions
than nominees of any Democratic president. See, e.g., id. at 47 tbls.2, 3, 4, 5, 6, 7 & 8;
Ronald Stidham, Robert A. Carp & Donald R. Songer, The Voting Behavior of President
Clinton’s Judicial Appointees, 80 JUDICATURE 16, 19 tbls.1 & 2 (1996).
146 Derived from Sheldon Goldman, Bush’s Judicial Legacy: The Final Imprint, 76 JUDICATURE 282, 295 tbl.6 (1993).
147 The “nominate scores,” sometimes referred to as “common space” measures, are
based on the voting behavior of judges’ home-state U.S. senators, where those senators are
of the same party as the nominating president. Micheal W. Giles, Virginia A. Hettinger &
Todd Peppers, Picking Federal Judges: A Note on Policy and Partisan Selection Agendas,

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more sensitive than the party of the appointing president), the results
are similar: A new study shows the increasingly conservative median
point for federal courts of appeals leading up to 1992.148 Studies of
district court voting behavior confirm the predicted rightward shift in
reported opinions.149
What undermines this potential explanation of the late 1990s contraction in court-order regulation is the timing of the ideological shift.
The proportion of Republican-appointed judges declined steadily
from 1992 through 2000, bottoming out at 45% at the end of the
Clinton presidency.150 True, given Clinton’s avowed interest in
appointing moderate judges, along with the demonstrable rightward
movement by Senate Democrats (who have a great deal to say about
who gets appointed to the federal courts of appeals and even more
about the district courts151), the Clinton appointees promised to be
54 POL. RES. Q. 623, 630–37 (2001) (using “common space” measures described in KEITH
T. POOLE & HOWARD ROSENTHAL, CONGRESS: A POLITICAL-ECONOMIC HISTORY OF
ROLL CALL VOTING (1997), to assess judges’ ideological predispositions).
148 Lee Epstein, Andrew D. Martin, Jeffrey A. Segal & Chad Westerland, The Judicial
Common Space, J.L. ECON. & ORG. (forthcoming 2006) (manuscript at 11 fig.4, on file
with the New York University Law Review), available at http://epstein.wustl.edu/research/
JCS.pdf (presenting sharp shift rightward, circuit by circuit, among federal court of appeals
appointees in 1980s).
149 See Kenneth L. Manning & Robert A. Carp, Declarations of Independence? Federal District Court Judges and the Congruence of their Decision-Making with Public
Opinion 15 tbl.2 (unpublished manuscript on file with the New York University Law
Review) (paper prepared for 2003 Sw. Pol. Sci. Ass’n). The relevant table is reprinted with
permission in this Article’s Technical Appendix, supra note 68. No study of unreported
district court dispositions is available. Cf. Penelope Pether, Inequitable Injunctions: The
Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435, 1494–97, 1503–07
(2004) (describing evidence of systematic differences in outcomes of reported and unreported adjudication in federal courts of appeals).
150 Derived from Goldman, supra note 146, at 295 tbl.6; Sheldon Goldman, Judicial
Selection Under Clinton: A Midterm Evaluation, 78 JUDICATURE 276, 291 tbl.6 (1995);
Sheldon Goldman & Elliot Slotnick, Clinton’s First Term Judiciary: Many Bridges to
Cross, 80 JUDICATURE 254, 272 tbl.8 (1997) [hereinafter Goldman & Slotnick, Clinton’s
First Term Judiciary]; Sheldon Goldman & Elliot Slotnick, Clinton’s Judges: Summing up
the Legacy, 84 JUDICATURE 228, 253 tbl.8 (2001); Sheldon Goldman & Elliot Slotnick,
Picking Judges Under Fire, 82 JUDICATURE 265, 283 tbl.8 (1999) [hereinafter Goldman &
Slotnick, Picking Judges Under Fire]; Sheldon Goldman, Elliot Slotnick, Gerard Gryski,
Gary Zuk, & Sara Schiavoni, W. Bush Remaking the Judiciary: Like Father Like Son?, 86
JUDICATURE 282, 298 tbl.1 (2003).
151 See SHELDON GOLDMAN, PICKING FEDERAL JUDGES: LOWER COURT SELECTION
FROM ROOSEVELT THROUGH REAGAN 358–59 (1997) (describing district court judges’
appointments as “primarily . . . the products of senatorial patronage”); Stephen B.
Burbank, Politics, Privilege & Power: The Senate’s Role in the Appointment of Federal
Judges, 86 JUDICATURE 24, 25–26 (2002) (explaining that Senate role with respect to lowercourt nominations is “dominated by patronage” and that senator from president’s party of
nominee’s state has “veto power”); Goldman & Slotnick, Picking Judges Under Fire, supra
note 150, at 267 (same); Goldman & Slotnick, Clinton’s First Term Judiciary, supra note
150, at 254–57 (“Candidates for the district bench came from recommendations by

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moderates rather than liberals.152 This has been borne out by voting
patterns; the Clinton appointees have proven less liberal than their
predecessors appointed by Presidents Johnson and Carter. Still, as
one would have expected,153 the Clinton appointees’ voting seems
nonetheless to be less conservative than that of their immediate
Republican predecessors.154 So the direction of the resulting mid1990s ideological shift in the federal bench makes it an equally poor
candidate as a cause of the change in the correctional census data
between the mid-1990s and 1999/2000. I argue below155 that the
increasing conservativism of the federal bench that characterized the
1980s has had an important impact on the nature of correctional courtorder litigation—but the late-1990s decrease in volume of regulation
must have had other causes.
3. The Changing Law of Injunctions
In the early 1990s the Supreme Court increasingly tried to rein in
civil rights court orders. Two school desegregation opinions, Board of
Education of Oklahoma v. Dowell 156 and Freeman v. Pitts,157 began
the trend in 1991 and 1992: In each, the Court made it a bit easier for
civil rights defendant governments to end court-order regulation. But
the current phase of public law litigation doctrine really started a bit
later, with the Kansas City school desegregation decision, Missouri v.
Jenkins (Jenkins III),158 and an Arizona inmate access-to-courts deciDemocratic senators, or in the absence of a Democratic senator, from the Democratic
members of the House of Representatives or other high-ranking Democratic Party
politicians.”).
152 See Epstein et al., supra note 148, at 11 fig.4 (presenting shift left in median nominate scores among federal court of appeals judges beginning in mid-1990s, but one that was
generally shallower than rightward shift of 1980s).
153 See Goldman, supra note 150, at 291 (describing Clinton administration’s moderate
appointment strategy); Stidham, Carp & Songer, supra note 145, at 19 tbl.2 (showing percentage of liberal decisions in areas of criminal justice, civil rights and liberties, and labor
and economic regulation).
154 See Stidham, Carp & Songer, supra note 145, at 19 tbl.2 (showing percentage of
liberal decisions in areas of criminal justice, civil rights and liberties, and labor and economic regulation).
155 Infra Part III.B.
156 498 U.S. 237, 249–50 (1991) (requiring dissolution of school desegregation order if
defendants “had complied in good faith with the desegregation decree since it was entered,
and . . . the vestiges of past discrimination had been eliminated to the extent practicable”).
157 503 U.S. 467, 471 (1992) (holding, because of policy in favor of relinquishing judicial
authority over local governmental entities, that district court “is permitted to withdraw
judicial supervision with respect to discrete categories in which the school district has
achieved compliance with a court-ordered desegregation plan,” and “need not retain active
control over every aspect of school administration until a school district has demonstrated
unitary status in all facets of its system”).
158 515 U.S. 70 (1995).

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sion, Lewis v. Casey,159 in 1995 and 1996, respectively. These cases
emphasized three preeminent values in public law litigation: the
importance of defendant governments’ institutional autonomy, the
need to formulate remedies of limited and foreseeable duration, and
the necessity of a tight fit between right and remedy. In Jenkins III,
Chief Justice Rehnquist’s majority opinion emphasized the requirement that the substance of any litigated remedy be limited by the
scope of the constitutional violation.160 Jenkins III held illegitimately
broad a district court order aimed at increasing the attractiveness of a
school district to families who lived outside of district boundaries,
because the proven violation occurred entirely within the district. In
his opinion for the Lewis Court, Justice Scalia similarly insisted that
litigated class action remedies could extend no farther than proven
injury, setting aside a systemwide order in a case in which the proof
was not similarly systemwide.
The timing of these doctrinal shifts is exactly right for them to
explain the mid-1990s shift in volume of court-order regulation. Read
most aggressively, Lewis in particular seems extremely important as a
constraint on the entry of new relief. After all, the Federal Bureau of
Prisons has 166 prison facilities; Texas has 108; California has 90.161 If,
for example, plaintiffs could obtain relief only with respect to individual institutions about which they presented evidence, that would
make systemwide relief all but unobtainable in large prison systems.
But this explanation of our observed contraction in correctional courtorder regulation fails because Lewis, a case about prison systems’
obligation to provide limited legal assistance (usually access to a law
library) to inmates seeking to challenge their conviction, sentence, or
conditions of confinement, has not, in fact, appeared terribly influential outside of that narrow doctrinal home. In cases since Lewis in
which courts have entered litigated orders, most opinions do not
spend much (or indeed any) time dealing with Lewis. To test this
159

518 U.S. 343 (1996).
In the most general way, this was a principle previously articulated in 1974, in the
Detroit school desegregation case, Milliken v. Bradley (Milliken I), 418 U.S. 717 (1974).
But Milliken I stands more for the limited proposition that misconduct by one government
entity does not authorize injunctive remedies that coerce a politically separate government
entity. Id. at 750, 752.
161 Fed. Bureau of Prisons, U.S. Dep’t of Justice, Federal Prison Facility Locator, http://
www.bop.gov/DataSource/execute/dsFacilityLoc (last visited Mar. 3, 2006) (listing federal
facilities); Tex. Dep’t of Criminal Justice, Unit Directory, http://www.tdcj.state.tx.us/stat/
unitdirectory/all.htm (last visited Mar. 5, 2006) (listing Texas’s facilities); Cal. Dep’t of Corrections and Rehabilitation, Fourth Quarter 2005 Facts and Figures, http://www.corr.ca.gov/
DivisionsBoards/AOAP/FactsFigures.html (last visited Mar. 9, 2006) (describing
California’s facilities).
160

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general impression (which is shared by inmates’ advocates162), I ran a
Westlaw search of federal court of appeals163 cases citing Lewis,164
which pulled up over 740 opinions. Nearly all the prison and jail cases
are about law libraries and other access-to-courts issues. Only twelve
of the 740 opinions were prison or jail cases in which appellate judges
treated Lewis as raising a general issue about standing or the permissible scope of injunctive relief.165 Apparently, in what is perhaps a
sign of the resilience of group adjudicatory techniques, lower courts
have essentially confined Lewis’s remedial holding to its original setting. Similarly, they do not generally take the time even to distinguish
Jenkins III. A similar search of court of appeals cases citing Jenkins
and using the word “jail” or “prison,”166 came up with just forty-three
opinions, only two of which deal with Jenkins even glancingly as precedent relevant to the scope of injunctive relief.167 Moreover, both
Lewis and Jenkins III set the terms for litigated decrees, but in fact
most cases settle. In sum, while the evidence is not conclusive, both
opinions and participants suggest that neither Lewis nor Jenkins III
has had impact on general injunctive practice in the prison or jail setting, and they therefore cannot explain the late 1990s decline in courtorder incidence.
162 E-mail from Elizabeth Alexander, supra note 138; E-mail from John Boston, supra
note 30; E-mail from Don Specter, Dir., Prison Law Office, to author (Oct. 24, 2005) (on
file with the New York University Law Review).
163 I limited this search to courts of appeals because in nearly all of the circuits, even
“unpublished” opinions in the federal courts of appeals are available via Westlaw, whereas
the problem of non-publication creates a bias of unknown direction and strength in district
court opinion analysis. Note, however, that for several of the courts of appeals, there
remains some group of historical opinions that are unavailable on Westlaw. See TIM
REAGAN ET AL., FED. JUDICIAL CTR., CITATIONS TO UNPUBLISHED OPINIONS IN THE FEDERAL COURTS OF APPEALS (2005), available at http://www.fjc.gov/public/pdf.nsf/lookup/
Citatio2.pdf/$File/Citatio2.pdf (discussing court of appeals publication policies and statistics); William R. Mills, The Shape of the Universe: The Impact of Unpublished Opinions on
the Process of Legal Research, 46 N.Y.L. SCH. L. REV. 429, 429–36 (2003) (outlining history
and policies of no-publish rules).
164 The search, which I ran during the summer of 2005, was “Lewis v. Casey” in
Westlaw’s “CTA” database.
165 For a list of the cases and relevant quotations, see Technical Appendix, supra note
68.
166 More precisely, my Westlaw search, in the “CTA” database in the fall of 2005, was
“‘Missouri /2 Jenkins’ & jail prison & da(aft 1994).”
167 See Glover v. Johnson, 138 F.3d 229, 242 (6th Cir. 1998) (“The challenge, it appears,
is to remember that terminating judicial oversight is an objective to be affirmatively strived
for, not simply an event that we welcome if it happens to occur. Cf. Missouri v. Jenkins,
515 U.S. 70, 88–89 (1995).”); Lucien v. Johnson, 61 F.3d 573, 576 (7th Cir. 1995) (denying
requested remedy that would “place the federal courts in a relation of superintendence to
the state court of claims—a well-nigh intolerable interference with a core function of state
government . . . . cf. Missouri v. Jenkins . . . (concurring opinion)”) (citations omitted).

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4. Declining Funding for Inmates’ Advocates
When correctional court-order litigation started, the plaintiffs’
side of the litigation was funded in three ways.168 First, some organizations that brought the cases received federal funding via the Legal
Services Corporation. Second, other organizations received foundation funding. The third funding source, important since the cases’
beginning, was free labor by private lawyers. These plaintiffs’ attorneys became involved in different ways: Some were appointed by
judges; others were brought in as “cooperating attorneys” by organizations with insufficient staffing to handle cases in-house; still others
got involved because of some commitment to a particular inmate
client or other connection to a given facility. Finally, in 1976, when
Congress enacted the fee-shifting Civil Rights Attorney’s Fees Awards
Act, it added to the mix a fourth method—the funding of successful
plaintiffs’ attorneys by defendants.169
This last source was constrained by the PLRA, which limits attorneys’ fees. The other funding sources, however, were not similarly
contracting. Just like the rightward tack on the federal bench, the
other restrictions on funding happened too early to provide satisfactory explanations for the mid- to late-1990s change. Federally funded
legal services offices were major players in jail litigation in particular
in the 1970s, but all the evidence indicates that the Reagan budget
cuts of 1981 greatly reduced their involvement, which became sporadic except in a few offices.170 So by the time Congress banned both
class actions and representation of inmates by recipients of legal services funding in 1996 (in the same appropriations bill that included the
PLRA),171 there was not much federally-funded correctional court168 As government entities, defendants are funded according to their ordinary budget
process.
169 Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641
(codified as amended at 42 U.S.C. § 1988(b) (2000)); Maher v. Gagne, 448 U.S. 122, 132–33
(1980) (holding that Act authorizes attorneys’ fees awards to compensate attorneys who
successfully negotiate consent decrees in civil rights cases). Until 1991, successful plaintiffs’ advocates were sometimes able to win an order shifting experts’ fees as well. See W.
Va. Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 85–86 (1991) (limiting expert fees to $30 per
day). Susan Sturm identifies Casey as putting some financial stress on national corrections
litigation, see Sturm, supra note 79, at 33 & n.125, and even now plaintiff-side participants
point to it as a crucial loss, see Telephone Interview with Vincent M. Nathan, frequent
special master in jail and prison cases (Aug. 2, 2005).
170 See Schlanger, Beyond the Hero Judge, supra note 7, at 2019; Sturm, supra note 79,
at 53–67.
171 See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No.
104-134, § 504(15), 110 Stat. 1321, 1321–55; see also 45 C.F.R. §§ 1632.1–1632.5 (2005)
(governing Legal Service Corporation’s representation of prisoners).

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order activity left to stifle.172 This change cannot have caused the late1990s decline in volume of court-order litigation.
Some foundation sources had also shrunk or disappeared by
1996. The National Prison Project of the ACLU, for example, was
once the Edna McConnell Clark Foundation’s largest grantee, until
Clark turned off the spigot.173 But that change took place in the early
1990s—a bit too early to explain the data above. Moreover, new
foundation sources have emerged.174 Some make the traditional types
of grants, directly to an organization to pay for its lawyers, experts, or
other expenses. Others follow a newly prevalent model of legal public
interest funding; rather than grants to organizations, a number of
newer funders provide salary-support fellowships to young lawyers
who go work for public interest law groups, including inmates’ advocacy groups.175 It would require further research to understand the
net impact of these competing trends.176
As for the third initial source of support for correctional injunctive litigation, subsidization by private lawyers, there is no convincing
evidence that as of the late 1990s it had shrunk or was shrinking. In
fact, recent years have seen an increase in the pro bono commitments
of large law firms.177
172

See supra note 170.
Telephone Interview with Alvin J. Bronstein, founder and former Dir., ACLU Nat’l
Prison Project (Dec. 21, 1998) (describing early foundation support for National Prison
Project); Sturm, supra note 79, at 32 & n.122 (describing Clark support for National Prison
project in 1990–1991, and its subsequent decision to “gradually phase out unrestricted,
general support for corrections litigation”).
174 Among the most prominent new foundation sources of support for correctional
court-order litigation are George Soros’s Open Society Institute, the Jeht Foundation, and
the Impact Fund. Telephone Interview with Steve Kelban, Executive Dir., Andrus Family
Fund (Oct. 27, 2004); Foundation Directory Online, http://fconline.fdncenter.org (last visited Mar. 3, 2006) (subscription required); The Impact Fund, Grants Awarded, http://
www.impactfund.org/pages/grants/grntspst.htm#04-05CivilRights (last visited Mar. 23,
2006) (describing grants awarded in particular cases) Open Society Institute, U.S. Justice
Fund, The After Prison Initiative, http://www.soros.org/initiatives/justice/focus_areas/
after_prison/grantees/bazelon_2004 (last visited Mar. 9, 2006) (describing one grant).
175 Telephone Interview with Elizabeth Alexander, supra note 122; E-mail from Don
Specter, supra note 162.
176 Lawyers from some advocacy organizations report that external funding has grown
somewhat sparser since the 1980s, with the effect of constraining the volume of their activities. But at least some of them rank tightening funding far below the non-monetary provisions of the PLRA as an explanation for the mid- to late-1990s contraction in correctional
court orders. See E-mail from Elizabeth Alexander, supra note 138. Don Specter of the
Prison Law Office reports that the PLRA has not had much effect on his office’s California
prison docket. E-mail from Don Specter, supra note 162.
177 Scott L. Cummings, The Politics of Pro Bono, 52 UCLA L. REV. 1, 40–41 (2004).
Large firms with pro bono programs have been quite involved in corrections litigation.
Sturm, supra note 79, at 71–72.
173

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* * * *
What we have at the end of the day, then, is a quite different
story from the one prior scholars have told. Far from an early 1980s
heyday, it looks like correctional court-order incidence essentially
plateaued from the 1980s to the 1990s, for both jails and prisons.178
The 1996 Prison Litigation Reform Act is the most plausible explanation for what happened next. By drastically widening the escape route
for correctional jurisdictions seeking to terminate court orders, interposing a difficult administrative exhaustion hurdle for maintenance of
a court-order lawsuit, and squeezing the funding for the advocates
who seek court orders, the PLRA has contributed to a major decline
in the regulation of prisons and jails by court order. Nonetheless,
even after the PLRA, court-order incidence remains quite high in the
final correctional censuses. There is increasing variation among
states, and in a few states, jails and prisons continue to experience a
great deal of injunctive regulation.
III
THE CHANGING NATURE

OF

COURT-ORDERED RELIEF

Even though the 1980s and early 1990s did not see a decline of
the incidence of court orders governing jails and prisons around the
country, that does not mean that court-order practice continued
unchanged. In fact, major changes in the nature of the litigation took
place. The correctional census data along with other sources reveal
that over the 1980s and 1990s there was a marked shift in what might
be called the depth of court-order regulation, as the paradigm intervention shifted from an omnibus model to something more finegrained.
A. Number of Topics
In a perfect world one would use a combination of metrics to
assess court-order depth: number or proportion of inmates affected,
number or proportion of staff affected, money spent on compliance,
staff hours spent on compliance, perceived burden and benefit, and so
on. Unfortunately, such metrics are unavailable. Nevertheless, the
correctional census data do allow valuable, if blunter, inquiry. Figure
178 It is possible, of course, that there was a pre-1984 peak that is not detectable by
examination of the census data, which start in 1984. I think this is unlikely, however, based
on other sources, such as the National Prison Projects’ “status reports” which used to
describe annually the most significant prison cases past and present, and therefore allowed
some assessment of pre-1984 trends. Those status reports are reprinted in 3 PRISONERS
AND THE LAW app. B (Ira P. Robbins ed., 2005).

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5 begins that inquiry, describing the number of specific topics reported
by jails and prisons subject to court order, over time.179 The number
of topics is interesting both because it tells us something about the
nature of court-order cases and also because it may correlate with
their budgetary impact.180
Figure 5 is, once again, a set of histograms, in two panels. In the
first, each regulated facility receives equal weight; in the second, the
figures are weighted by the population held in each regulated facility.
Both panels show that among prisons, but not jails, the early 1990s
saw a substantial decrease in the number of regulated subject areas.
That decrease continued between 1995 and 2000. The trend is
stronger in the second, population-weighted panel, but it is present in
179

This table presents the questionnaires’ included topics, by census administration:

Population cap
Totality of conditions
Crowding
Medical care
Administrative segregation
Staffing
Food/sanitation
Education/training
Discipline
Discipline/grievance
Grievance policies
Recreation/exercise
Visiting
Visiting/mail
Visiting/mail/phone
Fire safety
Counseling
Inmate classification
Library services
Search policies
Discrimination
Protective custody
Religious practices
Accommodation of disability

Jail
1983
•

Prison Jail
1984 1988
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

•
•
•
•
•

Prison Jail
1990 1993
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

•
•
•

Prison Jail
1995 1999
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•

Prison
2000
•
•
•
•
•
•
•
•
•

•
•

•
•

•
•

•
•
•
•
•
•

•
•
•
•
•
•

•
•
•
•
•
•

•

•

•
•

•
•
•
•
•

•
•
•
•
•

•
•

Not all the topics are listed in the published reports, but they are all listed in the ICPSR’s
codebooks for the raw census data, see supra note 81, as well as in the census questionnaires themselves (on file with the New York University Law Review). See supra notes
83–86 The two most recent census questionnaires, for 1999 and 2000 are BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CJ-3, 1999 CENSUS OF JAILS (1999), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/cj-3.pdf and BUREAU OF JUSTICE STATISTICS, U.S.
DEP’T OF JUSTICE, CJ-43, 2000 CENSUS OF STATE AND FEDERAL ADULT CORRECTIONAL
FACILITIES (2000), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cj43.pdf.
180 Two studies examining what their authors believed to be the single most significant
prison court orders in each state found that the number of issues in these cases correlates
with greater budgetary increases for corrections departments following their entry. Fliter,
supra note 34, at 409 tbl.2, 409–10; Taggart, supra note 34, 265 tbl.7, 265–66 (1989). It is
not clear, however, how generalizable these findings are.

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both. Jails under court order followed a very different pattern; they
saw much less change over time. What change did occur was an
increase in the number of topics between 1988 and 1993, and then a
slight decrease in the next period, from 1993 to 1999.
FIGURE 5A: NUMBER OF REGULATED TOPICS AMONG
CORRECTIONAL ENTITIES WITH COURT ORDERS
Jail, 1993

Jail, 1988

1. 3. . 6 . . 9. .12+

1. 3. . 6 . . 9 . .12+

1. 3. . 6 . . 9. .12+

Prison, 2000

Prison, 1995

Prison, 1990

1. 3. . 6 . . 9. .12+

1. 3. . 6 . . 9 . .12+

1. 3. . 6 . . 9. .12+

.4
.2
0
.4

.6

Prison, 1984

0

.2

Fraction of facilities with court order

.6

Jail, 1999

1.3.

.6.

. 9. .12+

Number of court-order topics

Jail, 1993

Jail, 1988

1. 3. . 6 . . 9. .12+

1. 3. . 6 . . 9 . .12+

1. 3. . 6 . . 9. .12+

Prison, 2000

Prison, 1995

Prison, 1990

1. 3. . 6 . . 9. .12+

1. 3. . 6 . . 9 . .12+

1. 3. . 6 . . 9. .12+

0

.2

.4

.6

Jail, 1999

.2

.4

.6

Prison, 1984

0

Fraction of incarcerated population in facility with court order

FIGURE 5B: NUMBER OF REGULATED TOPICS AMONG
CORRECTIONAL ENTITIES WITH COURT ORDERS
(WEIGHTED BY INCARCERATED POPULATION)

1.3.

.6.

. 9. .12+

Number of court-order topics

Source: Derived from Bureau of Justices Statistics Prison and Jail Censuses, supra note 81.

R

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B. Explaining the Changes
What this change signals and why it occurred are questions that
the census data cannot answer. But other sources—court opinions,
law review articles, case studies, and interviews—shed some light. My
reading of these sources suggests that the decrease in the number of
topics in prison court orders that began in the mid-1980s stems from
two factors, one within litigation and the other within corrections.
The first factor was the increasing rigor of injunctive litigation over
the relevant time period. Prior work, for example by Susan Sturm,
has identified this trend and attributed it primarily to top-down doctrinal shifts.181 I argue that this trend has other bottom-up sources as
well—in particular, a general hardening of attitudes about causation,
and (counterintuitively) the increasing resource base and sophistication of plaintiffs’ counsel. The second factor contributing to declining
numbers of regulated topics is more speculative: It may well be that
improving conditions (or at least conditions that improved in constitutionally regulated areas) made fewer topics attractive to either plaintiffs’ counsel or courts for court-order regulation. For jails, more than
for prisons, this second factor would be less applicable; jail conditions
have long been worse than prison conditions, and that continues to be
the case in many facilities. In addition, for jails, both factors have
been countered by the orders’ particularly large benefits to jail defendants. This Section examines how the practice of court-order litigation has metamorphosized over time. I argue that the 1970s “kitchen
sink” model—characterized by a litigation with broad scope, loose
standards of causation, and sweeping remedies, often based on
“totality of conditions” reasoning—gave way to more focused,
resource-intensive litigation that addressed increasingly narrow topics
with more rigorous proof on harm and causation. I conclude that the
changes were primarily caused by a conservative shift in the federal
bench, increasingly skeptical attitudes towards causation generally,
the legacy of the examples cast by Ruiz in the 1980s and Madrid v.
Gomez in the 1990s, and the involvement of lawyers practicing in the
“big-firm” model of litigation.
1. The 1970s: Pugh v. Locke
In the 1970s, prior to the first correctional census datapoint,
prison cases were typically litigated by advocates in a fairly limited
network of organizations—most prominently, the NAACP Legal
Defense Fund and the ACLU’s National Prison Project and their
181 See Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. PA. L.
REV. 639, 719–23 (1993).

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cooperating attorneys.182 Perhaps for this reason, by all accounts the
cases tended to follow a similar script, at least before the mid-1980s.
A paradigm prison case was the Alabama litigation, Pugh v. Locke.183
Pugh was very typical of the first generation of prison cases in that its
substantive scope, its method of litigation, and its remedial
approach184 were extremely broad. It was largely this wave of cases
that produced the results in the 1984 census—widespread orders
reaching many subjects.
Described in detail in several important case studies,185 Pugh v.
Locke started when District Judge Frank Johnson received several
serious complaints from inmates in the Alabama system and
responded by bringing in not only private counsel but also the ACLU
National Prison Project, the U.S. Attorney’s Office (led by Nixon
appointee Ira DeMent, later named to the federal bench by the first
President Bush), and the Department of Justice’s Civil Rights Division. It was the Prison Project and the Justice Department that
funded the litigation.186 Having heard the results of their investigation, including expert testimony, Judge Johnson agreed to impose a
quite comprehensive order governing prison policies and procedures
statewide.187
182 As one early prison litigator describes, the network predated the formal establishment of the Prison Project:
There were only a few of us in the prisoners’ rights movement at this time:
William Hellerstein of the New York City Legal Aid Society, Stanley Bass of
the NAACP Legal Defense & Education Fund, Inc. and a handful of others
scattered around the country. Hellerstein, Bass and I decided we would coordinate our efforts.
Herman Schwartz, Prisoners’ Rights Lawyers in VA and NY Merge to Form NPP, NAT’L
PRISON PROJECT J., Fall 1987, at 5.
183 Pugh and an earlier case, Newman v. Alabama, were merged, for some purposes,
early in their litigation. See Newman v. Alabama, 349 F. Supp. 278 (M.D. Ala. 1972); Pugh
v. Locke, 406 F. Supp. 318 (M.D. Ala. 1976); Newman v. Alabama, 466 F. Supp. 628 (M.D.
Ala. 1979); Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974); Newman v. Alabama, 559
F.2d 283 (5th Cir. 1977); Alabama v. Pugh, 438 U.S. 781 (1978) (per curiam); Newman v.
Alabama, 578 F.2d 565 (5th Cir. 1978); Newman v. Alabama, 683 F.2d 1312 (11th Cir.
1982); Newman v. Graddick, 696 F.2d 796 (11th Cir. 1983); Newman v. Graddick, 740 F.2d
1513 (11th Cir. 1984); Graddick v. Newman, 453 U.S. 928 (1981) (Powell, J.) (denying
application for stay); id. at 937 (Rehnquist, J.) (respecting Court’s denial of stay).
184 Telephone Interview with Elizabeth Alexander, supra note 122. Susan Sturm makes
a similar, though more limited point. She quotes several prison litigators—the same ones I
have interviewed—describing this early litigation as “anecdotal.” Sturm, supra note 181, at
719–21.
185 BASS, supra note 71, at 329–46; YACKLE, supra note 71, at 79–107; YARBROUGH,
supra note 71, at 187–217; see also Frank M. Johnson, Jr., The Alabama Punting Syndrome,
18 JUDGES’ J. 4 (1979).
186 YACKLE, supra note 71, at 69.
187 Pugh, 406 F. Supp. at 331–35.

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Liability in the Pugh litigation was predicated on a “totality of
conditions” theory: The idea was that various aspects of incarceration
for Alabama’s inmates combined to make the entirety of their lives
intolerable and therefore unconstitutional. This approach was litigated and followed in quite a large number of cases resolved in the
1970s.188 But the comprehensiveness of both the liability theory and
the resulting findings and remedy did not mean endless discovery and
trials. Rather, the plaintiffs’ counsel in the Alabama system litigation,
as in other cases of the era, proceeded with a broad-brush approach:
In this era, summary testimony by experts and judicial tours rather
than statistics were the preferred methods of proof.189 Judge Johnson
was (somewhat unusually) disinclined to tour, so plaintiffs’ counsel
substituted photographs to illustrate their testimony.190 The first
order was issued after a trial that lasted just seven days.191 Indeed,
Judge Johnson directed plaintiffs’ counsel away from longer presentation, for example when they began to ask an expert witness who had
testified about conditions at one facility whether conditions at the
others were similar.192 Notwithstanding that limited foundation, the
order governed prison population, the size of cells, the conditions of
isolation and the procedures to be followed to impose it, development
of a new inmate classification system, mental health care, protection
of inmates from other inmates, sanitation and hygiene, environmental
sanitation, nutrition, correspondence, visitation, educational and vocational training, recreation, and staffing levels. The Pugh order was
not terribly specific: It filled fewer than four pages in its Federal
188 For a review listing cases, see Michael S. Feldberg, Comment, Confronting the Conditions of Confinement: An Expanded Role for Courts in Prison Reform, 12 HARV. C.R.C.L. L. REV. 367, 369–70 & n.12 (1977). See also L. Lee Boatright, Note, Federal Courts
and State Prison Reform: A Formula for Large Scale Federal Intervention into State Affairs,
14 SUFFOLK U. L. REV. 545, 547 (1980) (“By aggregating conditions, however, inmate petitioners have convinced a number of courts that the cumulative effect of these elements
amount to a constitutional violation.”); id. at 547 n.10 (citing cases).
189 For a description of repeat judicial tours, see ANDERSON, supra note 47, at 107–14,
151 (case study of litigation over conditions at Kentucky State Reformatory):
In one of the dorms, Shorty said, “Look here, Judge.” Inmates lifted up some
floorboards. The judge peered down and saw raw sewage, including human
waste, floating beneath the floor. One inmate pulled back his mattress and
pointed to the underside, and Johnstone saw swarms of cockroaches crawling
on the mattress. . . . In another dorm, inmates politely asked the guard to open
the fire emergency escape door. The guard fumbled with his key chain and
tried key after key in the lock, but nothing worked: it was obvious that the
guard could not open the door in case of fire and that he was unaware of that
fact.
Id. at 151. For information on the underlying litigation, see supra note 46.
190 YACKLE, supra note 71, at 72.
191 Pugh, 406 F. Supp. at 322.
192 YACKLE, supra note 71, at 88.

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Supplement publication. But it incorporated by reference several
quite detailed sets of standards issued by various government authorities, and academics, as well as several Supreme Court cases.193
One of the reasons the Alabama trial was so short was that the
defendants put on almost no defense.194 In part, as clearly has happened many times since, the defendants were hopeful that a federal
court order would help them pry resources out of the state legislature.
“This is what happens,” the state’s lead attorney told newspaper
reporters, “when you have a legislature that abdicates its duties.”195 If
this was the plan it was quite effective: Estimates of the budgetary
consequences of the Pugh orders vary, but they were certainly
extremely large.196 Or perhaps—as prior commentators have also
suggested—Alabama’s prison conditions were so bad that defense
would have been useless, even counterproductive, for defendants
seeking to avoid alienating Judge Johnson, whose remedial authority
they would have to live with.197 But even if this latter point is correct,
that simply underscores the looseness of the evidentiary showing
required. Doctrinally, evidence of ill will or subjective culpability
(what current doctrine labels “deliberate indifference”198) was not yet
required. More important, the necessary causal showing connecting
demonstrated variations from accepted penal practice on the part of
administrators to evidenced widespread harm was quite minimal. If
plaintiffs could demonstrate, first, a set of problematic practices and,
second, widespread harm, neither courts nor defendants tended to
193 See Pugh, 406 F. Supp. at 332–35 (referring to standards set out in Wolff v.
McDonnell, 418 U.S. 539 (1974), Minimum Mental Health Standards for the Alabama Correctional System (Center for Correctional Psychology, University of Alabama, December
1972), Procunier v. Martinez, 416 U.S. 396 (1973), and United States Public Health
Service).
194 YARBROUGH, supra note 71, at 193–96.
195 Id. at 196 (quoting Robert Lamar in Montgomery Advertiser, August 29, 1975); see
also YACKLE, supra note 71, at 92 (suggesting defense strategy of blaming legislature for
inadequate funding).
196 Yackle reports that an early estimate predicted compliance costs for the physical
plant alone would be over $79 million. YACKLE, supra note 71, at 108. Taggart estimates
(based on multivariate regression) that the order triggered a more than one-third increase
in total annual expenditures for two years. Taggart, supra note 34, at 261 tbl.3, 263 tbl.5.
Harriman and Straussman describe an increase in expenditures per prisoner of 81%.
Harriman & Straussman, supra note 34, at 345 tbl.1. Note that it is difficult to separate the
effect of the Pugh orders from that of orders in Newman v. Alabama, a case about medical
care begun earlier, also before Judge Johnson.
197 See YACKLE, supra note 71, at 92–93 (describing strategic reasons for not putting on
strong defense).
198 See Farmer v. Brennan, 511 U.S. 825, 829 (1994); Estelle v. Gamble, 429 U.S. 97, 104
(1976).

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press for precise proof about either the mechanics of the connection
or its strength.
Not all the prison cases in the 1970s and early 1980s looked just
like Pugh v. Locke. Many, for example, governed only one or a few of
a state’s facilities.199 Some were more thoroughly settled; others more
thoroughly litigated. Some concerned only a limited issue or two.200
But Pugh can fairly be described as a paradigmatic first generation
prison case. Over the years, however, the loose approach to causation
grew less and less prevalent. The trend had both top-down and
bottom-up origins—by which I mean, simply, that its causes can be
found both in developing Supreme Court precedent and in less doctrinal, more widespread factors.
2.

Bell v. Wolfish, Rhodes v. Chapman, and the Supreme Court’s
General Reining in of Public Law Litigation

The crucial Supreme Court precedents were issued in 1979 and
1981, in Bell v. Wolfish,201 a jail conditions case involving a federal
facility in New York City, and Rhodes v. Chapman,202 a double-celling
case from Ohio. Both decisions pushed lower courts towards a higher
evidentiary standard in prison and jail cases. These cases were part
and parcel of the Supreme Court’s retrenchment in public law litigation more generally. The Court began in the 1970s and continued into
the 1980s to promulgate rules favoring defendants in civil rights litigation. It issued cases holding, for example, that civil rights remedies
must be closely tied to the demonstrated wrongs or their effects;203
that availability of relief is limited where it infringes on the rights of
actors who have done no wrong;204 and that the rights to be enforced
199 See, e.g., Wright v. Enomoto, 462 F. Supp. 397, 398 (N.D. Cal. 1976) (governing four
California maximum security prisons), summarily aff’d, 434 U.S. 1052 (1978); Bradberry v.
Phend, No. IP 76-459-C (S.D. Ind. Mar. 21, 1977) (consent decree and judgment governing
one Indiana prison) (described in Kindred v. Duckworth, 9 F.3d 638, 639–40 (7th Cir.
1993)); Ramos v. Lamm, 639 F.2d 559, 562 (10th Cir. 1980) (governing one Colorado
prison).
200 See, e.g., Lamar v. Coffield, 951 F. Supp. 629, 630 (S.D. Tex. 1996) (describing order
entered in 1977 requiring desegregation in inmate housing in Texas prison system);
Muhammad v. Keve, 479 F. Supp. 1311, 1314, 1328 (D. Del. 1979) (accommodation of
Muslim diet and use of Muslim names in Delaware Correctional Center).
201 441 U.S. 520 (1979).
202 452 U.S. 337 (1981).
203 Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 435–36 (1976) (vacating judgment for failure to show racial mix of schools was caused by segregative actions of school
board); Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 419–20 (1977) (vacating judgment
for disparity between evidence of constitutional violation and scope of district court
remedy).
204 Milliken v. Bradley, 418 U.S. 717, 752–53 (1974) (vacating judgment of interdistrict
remedy where constitutional violations were limited to one district).

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are federal, not state.205 At the time, the limits of this second set of
cases were seen by pro-reform commentators to be anachronisms,206
but they have proved to be permanent features of the remedial
landscape.
Bell v. Wolfish and Rhodes v. Chapman fit comfortably in this
broader group of decisions making civil rights remedies harder for
plaintiffs to sustain. In Wolfish, the Court held double bunking of
pretrial jail inmates permissible under the Fourteenth Amendment.
In an often-quoted passage in his majority opinion, then-Justice
Rehnquist cautioned lower courts against too-ready interference with
correctional authorities’ prerogatives:
The deplorable conditions and Draconian restrictions of some of
our Nation’s prisons are too well known to require recounting here,
and the federal courts rightly have condemned these sordid aspects
of our prison systems. But many of these same courts have, in the
name of the Constitution, become increasingly enmeshed in the
minutiae of prison operations. Judges, after all, are human. They,
no less than others in our society, have a natural tendency to believe
that their individual solutions to often intractable problems are
better and more workable than those of the persons who are actually charged with and trained in the running of the particular institution under examination. But under the Constitution, the first
question to be answered is not whose plan is best, but in what
branch of the Government is lodged the authority to initially devise
the plan. This does not mean that constitutional rights are not to be
scrupulously observed. It does mean, however, that the inquiry of
federal courts into prison management must be limited to the issue
of whether a particular system violates any prohibition of the
Constitution or, in the case of a federal prison, a statute. The wide
range of “judgment calls” that meet constitutional and statutory
requirements are confided to officials outside of the Judicial Branch
of Government.207

In Rhodes, the Court reversed an order barring double celling at
a maximum security facility in Ohio as banned by the Eighth Amendment, explaining that prior cases favorable to inmates were not to be
read too loosely. The test was whether conditions “alone or in combination” could be shown to “deprive inmates of the minimal civilized
measure of life’s necessities.”208 Although Justice Brennan, joined by
205 Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (holding that
federal courts lack jurisdiction to enter injunction compelling state officials’ compliance
with state law).
206 E.g., Abram Chayes, The Supreme Court, 1981 Term, Foreword: Public Law Litigation and the Burger Court, 96 HARV. L. REV. 4, 7–8 (1982).
207 Bell v. Wolfish, 441 U.S. 520, 562 (1979).
208 Rhodes v. Chapman, 452 U.S. 337, 347 (1981).

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Justices Blackmun and Stevens, concurred in the judgment in order to
“emphasize that today’s decision should in no way be construed as a
retreat from careful judicial scrutiny of prison conditions,”209 even
that concurrence insisted that plaintiffs seeking constitutional regulation of prison conditions demonstrate the causal link between the
challenged practices and specific harm—problems with, for example,
food, ventilation, sanitation, or violence.210 Justice Brennan agreed
with the outcome because “the [district] court’s findings of fact suggest that crowding at the prison has not reached the point of causing
serious injury.”211 (I do not mean to overstate this last point, however; Brennan held an extremely expansive view of what harms were
constitutionally cognizable.)
Bell v. Wolfish and Rhodes v. Chapman did not forbid “totality of
conditions” reasoning—the Supreme Court did not take that step
until ten years later, in Wilson v. Seiter 212—but they went a step or
two down that path. Indeed, several courts of appeals anticipated
Wilson’s holding, citing the earlier Supreme Court precedents. For
example, in 1981 in a case about inmates in administrative segregation
in four California state prisons, the Ninth Circuit vacated an injunction entered by the district court, and explained that the lower court’s
totality of conditions reasoning was dispositively overbroad: “[T]he
court’s principal focus must be on specific conditions of confinement.
It may not use the totality of all conditions to justify federal intervention requiring remedies more extensive than are required to correct
Eighth Amendment violations.”213 Rather, the Ninth Circuit held, litigation had to be a good deal more precise:
In analyzing a challenge to prison conditions based on the Eighth
Amendment, a court should examine each challenged condition of
confinement, such as the adequacy of the quarters, food, medical
209

Id. at 353 (Brennan, J., concurring in judgment).
Id. at 364. Justice Brennan explained:
The court must examine the effect upon inmates of the condition of the physical plant (lighting, heat, plumbing, ventilation, living space, noise levels, recreation space); sanitation (control of vermin and insects, food preparation,
medical facilities, lavatories and showers, clean places for eating, sleeping, and
working); safety (protection from violent, deranged, or diseased inmates, fire
protection, emergency evacuation); inmate needs and services (clothing, nutrition, bedding, medical, dental, and mental health care, visitation time, exercise
and recreation, educational and rehabilitative programming); and staffing
(trained and adequate guards and other staff, avoidance of placing inmates in
positions of authority over other inmates).
211 Id. at 368.
212 501 U.S. 294 (1991).
213 Wright v. Rushen, 642 F.2d 1129, 1133 (9th Cir. 1981); see, e.g., Hoptowit v. Ray, 682
F.2d 1237, 1246 (9th Cir. 1982) (similarly rejecting totality of conditions analysis); Walker
v. Mintzes, 771 F.2d 920, 925 (6th Cir. 1985) (same).
210

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care, etc., and determine whether that condition is compatible with
“the evolving standards of decency that mark the progress of a
maturing society.” . . . Of course, each condition of confinement
does not exist in isolation; the court must consider the effect of each
condition in the context of the prison environment, especially when
the ill-effects of particular conditions are exacerbated by other
related conditions.214

This approach was encouraged if not required by Bell v. Wolfish and
Rhodes v. Chapman.
3. 1980s Factors: The Rightward Shift Among Federal Judges;
Increasing Causal Skepticism; Ruiz v. Estelle
Prior literature offers an account similar to mine of once-loose
and then tighter evidentiary approaches to prison reform litigation;
that literature has, like the Section just concluded, found the causes of
the trend in Bell v. Wolfish and Rhodes v. Chapman. As Susan Sturm
summarized in a 1994 law review article:
The Supreme Court’s decisions over the last fifteen years, particularly in Bell v. Wolfish and Rhodes v. Chapman, toughened the evidentiary standards for demonstrating that overcrowding and other
conditions are depriving inmates of basic human needs. Proving
that an institution’s population significantly exceeds design capacity
or violates minimum professional standards is not enough. Plaintiffs must demonstrate the connection between the prison conditions and a particular harm to inmates.215

Although this seems correct, I believe that these Supreme Court cases
were not sufficient (or even, for that matter, necessary) to explain the
changes in litigation practice that indubitably occurred. Rather, the
simultaneous influences discussed in this Section—the increasing conservativism of the federal bench, increased causal stringency, and the
example set by the district court Texas prison litigation, Ruiz—better
account for the shift.
The rightward shift among federal judges. Beginning in 1981,
increasingly conservative doctrine was coupled with increasingly conservative judges, as President Reagan’s appointees joined the federal
bench. The point that this change affected the nature of civil rights
litigation is obvious to any civil rights lawyer, and also finds support in
the limited scholarly resources relating to district courts.216 One
214

Wright, 642 F.2d at 1133.
Sturm, supra note 181, at 719 (footnotes omitted).
216 Although it is perilous to rely too heavily on reported opinions, see Pether, supra
note 149, at 1494–97, 1503–07 (describing evidence of systematic differences in outcomes
of reported and unreported adjudication in federal courts of appeals), in a database of
reported district court opinions coded by Kenneth Manning, Robert Carp, and C.K.
215

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would expect more conservative judges to be less interested in
kitchen-sink prison and jail injunctive litigation, and harder to persuade even in focused cases.
Causal skepticism. Another, less banal, point seems to me
extremely important as well. When corrections litigation was in its
infancy, causation seemed obvious, and belaboring the topic seemed
correspondingly hypertechnical. But over time, it came instead to
seem appropriate to require plaintiffs seeking court-enforced relief to
make a fairly rigorous showing of the precise nature of their causal
claims. This is not simply a top-down, Supreme-Court-driven change;
the point is more attitudinal than doctrinal. The resulting shift
towards greater causal stringency is one that has occurred in many
areas of law—for example in antitrust,217 administrative law,218 and
the constitutional law governing policing219—as well as in prison conditions cases. Indeed, the trend towards increasingly piecemeal analysis of plaintiffs’ claims probably extends even farther. Steve
Burbank, for example, describes modern summary judgment practice
as warped by what he calls factual and legal “carving”—the first “a
process that does not require more of the whole but sees less in the
parts by subjecting the nonmovant’s ‘evidence’ to piece-by-piece analysis,” and the second a tendency “whereby the law is subdivided into
smaller, more objective units, thus ramifying the issues as to which an
adequate factual showing (however defined) must be made.”220
Because increased causal stringency will tend, in most arenas, to favor
defendants over plaintiffs (who bear the burden of proof), this point
Rowland, “liberal” (pro-plaintiff) civil rights and civil liberties results peaked at nearly
52% in 1980, and then declined fairly consistently over the next twelve years, to 35%.
Manning & Carp, supra note 149, at 15 tbl.2.
217 Jonathan M. Jacobson & Tracy Greer, Twenty-One Years of Antitrust Injury: Down
the Alley with Brunswick v. Pueblo Bowl-O-Mat, 66 ANTITRUST L.J. 273, 273 (1998); M.
Sean Royall, Disaggregation of Antitrust Damages, 65 ANTITRUST L.J. 311, 311 (1997)
(describing antitrust’s “disaggregation rule,” under which plaintiff who “challenges multiple discrete acts or practices as unlawful” must prove damages caused by each separate
violation).
218 See Gene R. Nichol, Jr., Causation as a Standing Requirement: The Unprincipled Use
of Judicial Restraint, 69 KY. L.J. 185, 186–87 (1980) (describing development of stricter
causation doctrine to govern injury-in-fact test).
219 Rizzo v. Goode, 423 U.S. 362, 375 (1976) (reversing grant of comprehensive injunctive relief against police department where “sole causal connection . . . between petitioners
and the individual respondents was that in the absence of a change in police disciplinary
procedures, the [allegedly unlawful] incidents were likely to continue to occur, not with
respect to them, but as to the members of the classes they represented”).
220 Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases:
Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 624–25
(2004).

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may well be related to the rightward shift in judicial personnel
described above.
Ruiz. A third non-doctrinal factor pushing prison litigation
towards increasing rigor was the example set by the avatar of the new
generation of cases, the Texas prison litigation, Ruiz v. Estelle.221
National Prison Project Director Elizabeth Alexander calls the impact
of Ruiz an example of a “reverse Gresham’s law”—its more rigorous
approach drove the less rigorous out of the system.222 That is, Ruiz
itself served as a bottom-up cause of the increasing complexity of
prison litigation, which was an important factor behind the correctional census data on declining topic numbers in the resulting court
orders.
None of the factors already described applied to Ruiz. The opinions in Bell v. Wolfish and Rhodes v. Chapman post-dated its trial. It
was tried before a liberal Johnson appointee, during the Carter administration, before the Fifth Circuit Court of Appeals began to shift
right. Its judge demonstrated no particular skepticism about plaintiffs’ causal claims. Yet Ruiz was litigation of an entirely different
form than Pugh—a mold that would grow familiar in the ensuing
years.
Like Pugh v. Locke, Ruiz began with a number of pro se filings
by inmates in the early 1970s. Similarly, it first took off when its district judge, William Wayne Justice, consolidated several of those individual complaints, appointed private counsel, and (on the advice of
Judge Frank Johnson223) summoned the U.S. Department of Justice to
appear in the case. Alabama had, at the time of the Pugh trial, held
5000 inmates, the bulk of them in four large facilities.224 Because
Texas (which then had the largest prison system in the country) held
over 24,000 inmates in seventeen major facilities,225 Ruiz posed a far
221 The chronicles of Ruiz v. Estelle, No. Civ. H-78-987 (S.D. Tex.) (first complaint filed
in June 1972), include CROUCH & MARQUART, supra note 71, at 117–50; DiIulio, supra
note 42, at 51–72; and MARTIN & EKLAND-OLSEN, supra note 71, at 83–168. That case is
also quite accessible via published and otherwise available court opinions; it made its first
appearance in the federal reporters as Ruiz v. Estelle, 550 F.2d 238 (5th Cir. 1977), was the
subject of its first major published opinion in 1980, Ruiz v. Estelle, 503 F. Supp. 1265 (S.D.
Tex. 1980), and its last as Ruiz v. Johnson, 154 F. Supp. 2d 975 (S.D. Tex. 2001), with
numerous stops along the way in the Fifth Circuit and one in the Supreme Court, Ruiz v.
Estelle, 460 U.S. 1042 (1983) (denying certiorari). It was finally dismissed on June 17, 2002.
See Ruiz v. Estelle, No. Civ. H-78-987, (docket entry 9015) (docket available via PACER
and as document PC-TX-003-000 at http://clearinghouse.wustl.edu).
222 Telephone Interview with Elizabeth Alexander, supra note 122. Gresham’s law,
which describes flows of currency, is usually stated as “bad money drives out good.”
223 William Wayne Justice, The Origins of Ruiz v. Estelle, 43 STAN. L. REV. 1, 6 (1990).
224 Pugh v. Locke, 406 F. Supp. 318, 322 (M.D. Ala. 1976).
225 See Ruiz v. Estelle, 503 F. Supp. 1265, 1274 n.1 (S.D. Tex. 1980) (listing Texas prisons
and number of inmates held in them).

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greater litigation challenge. The Justice Department funded and conducted an investigation unlike any that had previously occurred in a
prison case, with discovery that lasted several years and took untold
hours by lawyers, investigators, and experts, all funded by the U.S
government. For example, the Justice Department spent tens of
thousands of dollars constructing a life-size model of a forty-five
square foot cell; the model sat on the courtroom floor for the entire
trial, used periodically to illustrate testimony.226 The Texas Department of Corrections, far from acquiescing in an order, opposed its
entry tooth and nail. The trial began in October 1978, occupied 159
trial days, and ran until September 1979. Over 300 witnesses testified;
there were over 1500 exhibits. The opinion, issued in 1980, ran 127
pages in the Federal Supplement reporter, all those pages justifying
the entry of the comprehensive court order governing the entire Texas
prison system.227
Ruiz seems to have followed its path—rigor in discovery, litigation, justification, and regulation—for reasons unrelated to either doctrine or ideology. Rather, the reasons for its dissimilarity to Pugh
were more idiosyncratic: the size of the Texas prison system, the
vehement opposition by the defendants, and the ready availability of
litigation resources to the Department of Justice and the Texas
Department of Corrections.228 It was not doctrine but these factors
that combined to make Ruiz an example of a new kind of civil rights
litigation. Ruiz, in sum, continued the wholesale kind of order, but
taken seriously as a precedent—as it was by courts and litigants—it
served as an inadvertent rate-buster, setting the bar for getting such
an order very high.
Over the 1980s, then, both doctrinal changes and attitudinal
changes, along with the high expectations set by the litigation history
of cases like Ruiz, created hurdles for public law litigation. But those
hurdles were not, I should emphasize, insurmountable. Even if district judges scrupulously followed Wolfish and Rhodes, and even if
they were influenced both by the attitudinal shift I have identified and
by the example of Ruiz, the result was a higher bar for plaintiffs, not
inevitable defendants’ outcomes. The point is that by the end of the
1980s, to the extent that cases were contested, litigation grew more
rigorous and it began to be harder for plaintiffs to win wholesale
226 Telephone Interview with Donna Brorby, former plaintiffs’ counsel, Ruiz v. Estelle
(Aug. 4, 2005).
227 Ruiz v. Estelle, 503 F. Supp. 1265 (S.D. Tex. 1980).
228 Interview with Vincent M. Nathan, supra note 169; E-mails from Donna Brorby,
former plaintiffs’ counsel, Ruiz v. Estelle, to author (Oct. 24 & 25, 2005) (on file with the
New York University Law Review).

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orders. Unless defendants had their own strong reasons for settling,
plaintiffs almost certainly needed to offer a theory not only about
exactly how the claimed unconstitutional practice contributed to
serious harm experienced by plaintiffs, but about how much of that
harm was demonstrably attributable to the bad practice. This was
easier to do in cases about single issues than in the kind of kitchensink litigation represented by Pugh.
4. 1990s Factors: Wilson v. Seiter, Expenses, and Pro Bono
Practice
Except that the Clinton appointees tilted the federal judiciary a
little bit left,229 the 1990s saw even more of the same in what one
inmates’ attorney calls a litigation “arms race.”230 The Supreme Court
continued to raise evidentiary obstacles for injunctive remedies in
prison cases and the cases grew ever more complex and expensive to
litigate. This, in turn, fostered the staffing of major prison and jail
cases by pro bono large-firm attorneys. That personnel shift, I argue
below, has itself fed the arms race, as large-firm attorneys have followed their ordinary large-firm “playbook” to make the cases even
more expensive, more thoroughly litigated, and more complex.
In 1991, the Supreme Court continued farther down the path
marked in Bell v. Wolfish and Rhodes v. Chapman. In Wilson v.
Seiter,231 the Court opined:
Some conditions of confinement may establish an Eighth Amendment violation “in combination” when each would not do so alone,
but only when they have a mutually enforcing effect that produces
the deprivation of a single, identifiable human need such as food,
warmth, or exercise—for example, a low cell temperature at night
combined with a failure to issue blankets. . . . To say that some
prison conditions may interact in this fashion is a far cry from saying
that all prison conditions are a seamless web for Eighth Amendment purposes. Nothing so amorphous as “overall conditions” can
rise to the level of cruel and unusual punishment when no specific
deprivation of a single human need exists.232

Wilson also instituted a new requirement: evidence of a culpable
mental state labeled “deliberate indifference.”233 The result in litiga229

See supra notes 149–54 and accompanying text.
See infra note 234.
231 501 U.S. 294 (1991).
232 Id. at 323–24 (internal citations omitted).
233 Id. at 303. The Court imported this standard from Estelle v. Gamble, 429 U.S. 97,
104 (1976), which held that, in order for a prisoner to make an Eighth Amendment claim
for inadequate medical treatment, the prisoner must prove a defendant’s “deliberate indifference” to serious medical need.
230

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tion was to require proof not only of conditions but of specific administrators’ knowledge of conditions and the threats to inmate health
and safety they posed. Again, this was hardly insurmountable but it
complicated litigation substantially.
Interviews conducted by Susan Sturm in 1994 give a flavor of
what the post-1970s changes meant for plaintiffs’ counsel: Litigators
talked about an “arms race” in the “degree of sophistication” required
by these cases.234 John Boston, director of the New York City Legal
Aid Society’s Prisoners’ Rights Project, explained: “A great deal of
what we do now is put together evidentiary [presentations] of [a]
scope unthinkable 10–15 years ago.”235 Plaintiffs’ counsel began to
litigate cases differently—about fewer facilities and fewer issues at a
time. Even so, “cheap victories are now nonexistent,” Elizabeth
Alexander, of the National Prison Project reported.236 Especially
after West Virginia University Hospitals, Inc. v. Casey limited the availability of shifted expert fees,237 the non-profits began to look for deeppocket law firms to pay the very substantial—and in part unrecoverable—litigation outlays. As I discuss below, this in turn contributed to
a still more rigorous kind of litigation.
If Pugh was the paradigm prison case of the 1970s, and Ruiz of
the 1980s, Shumate v. Wilson, can serve as a 1990s exemplar. Filed in
1995 and settled two-and-a-half years later,238 Shumate concerned
medical care in two women’s prisons in California. It was litigated
and negotiated by a large group of plaintiffs’ lawyers from the ACLU,
Legal Services for Prisoners with Children, California Rural Legal
Assistance, two major California law firms (Heller Ehrman and
Bingham McCutchen), and a private public interest prisoners’
counsel. The Department of Justice did not appear. Where the earlier cases had covered classes of all present and future inmates in the
relevant state systems, Shumate’s class was more narrowly defined: all
present and future inmates at the relevant two facilities “who suffer
from, or who are at risk of developing, serious illness or injury,
excluding mental disorders,” with a separately represented subclass of
234 Sturm, supra note 181, at 720 n.381 (quoting from 1991 interview with John Boston,
Legal Director, Prisoners’ Rights Project, Legal Aid Society of New York).
235 Id. at 719 n.377 (quoting from 1991 interview with John Boston) (alterations in
original).
236 Id. at 710 n.332 (quoting 1990 and 1991 interviews with Elizabeth Alexander, Associate Director for Litigation, ACLU National Prison Project).
237 499 U.S. 83, 102 (1991).
238 Shumate v. Wilson, No. 2:95-cv-00619-WBS-JFM (E.D. Cal. filed Apr. 4, 1995, settled Dec. 22, 1997) (docket entries 1 and 392, complaint and order) (docket available via
PACER and as document PC-CA-011-000 at http://clearinghouse.wustl.edu).

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those class members “who have been diagnosed as HIV-positive.”239
In preparation for trial, the plaintiffs identified forty-six inmate witnesses; over fifty-six deposition transcripts were entered into evidence. The case was finally settled just before the trial was scheduled
to begin, when defendants agreed to a set of standards governing
health care. In many of these details, Shumate looked extremely different from its predecessors in the 1970s and 1980s. As we know from
the census data, its topical narrowness was not new, but was newly
characteristic. Equally important was the changing mix of lawyertypes representing the plaintiffs, and the level of effort required for
plaintiffs to obtain their relief notwithstanding the substantive narrowness and local reach of the order.
Finally, to end this examination of trends over time, a final 1990s
litigation—and one that currently looms as large as Ruiz (and much
larger than Shumate) in the zeitgeist of prison advocacy—Madrid v.
Gomez, also involving the California prison system, was litigated all
the way to resolution.240 Madrid involved the same kinds of plaintiffs’-side advocates as Shumate—a large law firm, Wilson Sonsini,
working pro bono; the Prison Law Office, a California prisoners’
rights group; and private public-minded law firm Altshuler Berzon.241
The case concerned the operations of three facilities at Pelican Bay—
one maximum security, one “security housing unit” or SHU, and one
small minimum security unit. Between the three, Pelican Bay housed
between 3500 and 3900 inmates242 (thus it was about the same size as
the Alabama system found unconstitutional in Pugh). The case was
tried before District Judge Thelton E. Henderson in thirty days spread
over two-and-a-half months: There were fifty-seven lay witnesses
(inmates, correctional officers, correctional officials) and ten experts;
over 6000 exhibits; and thousands of pages of deposition excerpts
entered into the record.243
239 Shumate v. Wilson, No. 2:95-cv-00619-WBS-JFM (E.D. Cal. Jan. 12, 1996) (docket
entry 57, order certifying class action) (docket available via PACER and as document
PC-CA-011-000 at http://clearinghouse.wustl.edu).
240 Madrid v. Gomez, No. 90-3094 (N.D. Cal. filed Oct. 26, 1990), appears in the federal
reporters at: Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995), mandamus denied,
Wilson v. U.S. Dist. Court for the E. Dist. of Cal., 103 F.3d 828 (9th Cir. 1996); Madrid v.
Gomez, 940 F. Supp. 247 (N.D. Cal. 1996) (attorneys’ fees), aff’d in part, rev’d in part, 190
F.3d 990 (9th Cir. 1999) (en banc), superseding 150 F.3d 1030 (9th Cir. 1998).
241 Wilson Sonsini won $3.5 million in attorneys’ fees, so its work was not, strictly
speaking, pro bono after all. Amy Stevens, The ‘Pro Bono’ Payoff, S.F. EXAMINER, Dec. 3,
1995, at A-12. The firm told a reporter that it planned to give $2.4 million to charity and
keep the rest for costs. Id.
242 Madrid, 889 F. Supp. at 1155.
243 The trial ran from September 17, 1993 to December 1, 1993, with closing argument
given December 15, 1993. See Madrid v. Gomez, No. C90-3094 (N.D. Cal.) (docket entries

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In its 139-page liability opinion, the court found that prison staff
habitually used excessive force against inmates in a variety of situations; that the medical and mental health care at Pelican Bay were
constitutionally inadequate; and that conditions in the Secure Housing
Unit constituted cruel and unusual punishment for prisoners with
mental illness, brain damage, mental retardation, or borderline personality disorders.244 The court’s order was incredibly careful: It
described the problem, explained its causes, discussed the evidence in
support of each step of the causal chain, and connected that evidence
to the culpable state of mind of named defendants. Judge
Henderson’s opinion in Madrid followed every rule laid down by the
Supreme Court. But Madrid the case, rather than Madrid the opinion
did more. As in Ruiz, fifteen years earlier, Madrid’s plaintiffs’ lawyers raised to a whole new level the quantum of evidence offered in
corrections litigation. And like Ruiz, Madrid now sits in the collective
consciousness of those bringing, defending, and judging correctional
litigation, demonstrating what kind of showing is required for a sustainable liability finding.
Why did plaintiffs’ counsel work so hard at Madrid? It seems
unlikely that winning the case in the district court required the degree
of preparation, proof, argument, and evidence produced. After all,
just like Ruiz’s Judge Justice and Pugh’s Judge Johnson, Judge
Henderson is well known as one of the most progressive members of
the federal bench.245 Rather, plaintiffs’-side participants agree that in
part the idea was to create a record for appeal, and in part—and this is
the point I am particularly interested in—it was just because “that’s
the way partners at big firms practice.”246 A story about the case’s
beginning makes the point. When Susan Creighton, the Wilson
Sonsini partner who led the litigation, was just getting started, she
hired Steve Martin as a litigation consultant. Martin, an experienced
expert-witness penologist, recalls that over two days of meetings, the
342–475, 479) (docket available as document PC-CA-017-000 at http://clearinghouse.wustl.edu) (length of trial); Madrid, 889 F. Supp. at 1156–57 (reporting other
statistics).
244 Madrid, 889 F. Supp. at 1254, 1260, 1267.
245 See, e.g., SOUL OF JUSTICE: THELTON HENDERSON’S AMERICAN JOURNEY (Abby
Ginzburg, producer, 2005).
246 Telephone Interview with Vincent M. Nathan, supra note 169. It is clear that who
the lawyer is in a case can matter a great deal for how it is litigated. See, e.g., Howard M.
Erichson, Private Lawyers, Public Lawsuits: Plaintiffs’ Attorneys in Municipal Gun Litigation, in SUING THE GUN INDUSTRY: A BATTLE AT THE CROSSROADS OF GUN CONTROL
AND MASS TORTS 129, 136–40 (Timothy D. Lytton ed., 2005) (describing different
approaches taken in gun litigation by lawyers of different backgrounds); Thomas M.
Hilbink, You Know the Type. . .: Categories of Cause Lawyering, 29 LAW & SOC. INQUIRY
657, 662–90 (2004) (describing types of “cause lawyers” and difference their type makes).

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firm lawyers discussed prison litigation with him—what kinds of
records prisons kept, what kinds of discovery were useful, who the
best experts were, how much those experts charged, how long they
could be expected to take to do their work, the conditions for an
effective site visit, and so on. On some issues, however, it was the firm
lawyers who explained how things were going to work. Martin
remembers, “Susan said, ‘We are going to litigate this case like we do
any other case. We’re going to hire the best experts, [and then] give
them what they need.’”247 At one point, Martin was asked how many
use-of-force incident reports he would need to review. He began by
saying, “Well, ideally, all of them—but that’s not doable, so . . . .”
Creighton interrupted him, he recalls, and said, “No, it is doable.” He
was paid for the time it took to review each and every one.248 Vince
Nathan, special master in Ruiz as well as many other cases, was
another expert hired by the plaintiffs in Madrid. He remembers very
similar conversations: “Susan Creighton was so focused, so sophisticated; there was never enough proof for her.”249
Both Nathan and Martin explain that this kind of thorough,
resource-intensive litigation is not unusual in injunctive class actions
litigated by large firms since the 1990s. Only rarely, Nathan says, has
he seen large firms leave correctional class action cases to wither,
staffed only by overworked associates and underlitigated in a variety
of ways. Much more typically, “when litigation begins, it’s like there’s
a playbook, the same one for big commercial litigation and for pro
bono cases. If you sue someone, this is how you do it.”250 Another
lawyer who frequently represents inmates in damage actions explains
in all seriousness that big law firms “don’t know how to not spend
money.”251
It makes sense that, having committed to a particular litigation,
pro bono counsel would litigate hard. Several studies have described
how in the 1990s, large law firms’ pro bono practice norms became
increasingly assimilated with their paid-practice norms.252 The change
247 Telephone Interview with Steve J. Martin, former General Counsel, Texas Dep’t of
Corrections, and frequent expert witness and court monitor in jail and prison cases (Aug. 2,
2005).
248 Id.
249 Telephone Interview with Vincent M. Nathan, supra note 169.
250 Id.
251 Telephone Interview with Catherine Campbell, prisoners’ attorney (May 7, 2001).
252 Cummings, supra note 177, at 33–41 (documenting institutionalization of pro bono
work in big firms in 1990s); Stephen Daniels & Joanne Martin, Legal Services For The
Poor: Supply, Self-Interest, and Institutionalizing Pro Bono 17–24 (June 2005), (unpublished manuscript, on file with the New York University Law Review) (reporting how large
firms in Chicago structure pro bono work).

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is likely to be self-reinforcing. If it takes Wilson Sonsini’s resources to
litigate a prison case successfully, there is ever more reason for inmate
advocacy groups to find law firms to take cases on.253
It is not the case, I should emphasize, that every single correctional court-order litigation now follows what Vince Nathan calls the
big firm “playbook.” Leanly staffed litigation cases continue to be
brought, sometimes to dispositions favorable to the plaintiffs.254
However, like Ruiz, the example of Madrid casts its shadow upon corrections litigation, and thus serves as a bottom-up cause of the
increased complexity of contemporary injunctive correctional
practice.
* * * *
At the end of the day, then, I have argued that over the past
twenty years, the increasing rigor of injunctive practice has been of
great importance in correctional injunctive cases. It has induced
plaintiffs’ counsel to tackle fewer issues in fewer facilities at a time. It
has, along with declining attorneys’ fees reimbursement, the end of
expert fees reimbursement, and the other factors described, pushed
inmates’ rights organizations into partnerships with big firm lawyers
who can commit substantial economic resources to the increasingly
complex and expensive litigation. In turn, the big firm approach to
the litigation has itself furthered the very same trend.
C. Changing Conditions?
In addition to litigation reasons, there could be corrections reasons for the decline in the number of topics in prison court-order
cases. Perhaps there were fewer topics for orders because prison conditions have gotten better, maybe even because of prior orders. Even
though the incarcerated population exploded in the 1980s and 1990s,
253 Cf. Stephen Daniels & Joanne Martin, The Strange Success of Tort Reform, 53
EMORY L.J. 1225, 1253–54 (2004) (explaining how increased expenses and procedural hurdles in malpractice litigation have made it more attractive to specialists, whose comparative
advantage has grown).
254 For example, the death row litigation in Mississippi, litigated by counsel from the
National Prison Project and the law firm Holland and Knight, took just seven months to
get from complaint (filed July 12, 2002) to trial (started Feb. 15, 2003), just three days of
trial time, and just four experts. See Complaint, Russell v. Johnson, No. 1:02-cv-00261
(N.D. Miss. Jul. 18 2002) (docket entry 1 and Transcript (Mar. 3, 2003)) (docket available
via PACER and as document PC-MS-003-000 at http://clearinghouse.wustl.edu.); Rebuttal
Declaration of Stephen F. Hanlon Regarding Plaintiffs’ Motion for Attorneys’ Fees and
Expenses at 5, Russell v. Johnson, No. 1:02-cv-261 (N.D. Miss. Dec. 3, 2004) (available via
PACER and as document PC-MS-003-004 at http://clearinghouse.wustl.edu) (only four
experts).

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there are fewer American prisons with the kinds of conditions
described in Judge Johnson’s liability ruling in Pugh v. Locke now
than there were in the 1970s. In some ways our prisons are worse
today—more idle, more dehumanizing—but Eighth Amendment law
is extremely limited: It exempts from constitutional analysis many of
the issues that matter most to prisoners, such as educational programming, work and other activities, and the custody level. So even though
today’s paradigmatic prison failings are deeply troubling, they do not
violate our current understanding of the Constitution. While today’s
inmates do more time and there are more of them (which magnifies
the importance of whatever failings our prisons have), there is little
question that most American prisons stay more comfortably above the
low constitutional floor today than they did in the past. One might
predict, then, the fall-off in number of topics that has in fact occurred.
But while the litigation-related reasons for Figure 5’s prison
results seem to me quite certain, these corrections-related reasons
seem somewhat less so. The reason for my skepticism is that improvements in the conditions of most prisons are somewhat beside the
point, because in recent years, court orders are regulating ever fewer
facilities. There is every reason to think that facilities with new court
orders are among the worst ones out there. And those facilities are
certainly bad enough to justify multiple-topic regulation.
D. Jails
In jails, Figure 5 shows, there has been far less movement with
respect to the number of topics. That jails are different from prisons is
not surprising. For example, the PLRA has dampened the jail inmate
litigation rate much less than the prison inmate litigation rate.255 Still,
a final question is, why this difference? Two ideas would be worth
exploring in future research. Both stem from a basic fact about jails:
Jail administrators have very few levers to influence either available
resources or necessary expenditures. Jails are usually run by elected
sheriffs, who have no ability to tax. They house inmates whose
lengths of stay are largely determined by judges’ decisions about bail,
prosecutors’ decisions about plea bargains, and local trial schedules.
Prisons, by contrast, are run by wardens, civil service personnel who
answer to a state director or secretary or commissioner of corrections.
That director is most often a cabinet-level political appointee, though
255 See Anne Morrison Piehl & Margo Schlanger, Determinants of Civil Rights Filings in
Federal District Court by Jail and Prison Inmates, 1 J. EMPIRICAL L. STUD. 79, 103–05
(2004) (summarizing results from analyses of effect of PLRA on filing rates in jail and
prison populations).

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usually one with long-term corrections experience. Prisons have, if
not a tight connection, a tighter one via the governor’s office, to both
their funding and their population, which is largely determined by
state sentencing law.
The separation between elected sheriffs who run jails and the
counties that fund them means that for jails, even more than prisons,
much court-order litigation has been if not exactly collusive, at least
useful—and accordingly, not so very hard fought. As one jail administrator said to me about a case that served his jail very well,
budgetarily, “We got a lot of mileage out of that lawsuit; [we could]
whip out [that decree] like a stiletto.”256 Jail orders have been more
than just a way for sheriffs and other jailers to strong-arm money out
of cash-strapped county governments. Because they so often included
population caps, jail orders have been useful for administrators stuck
with overcrowded facilities (which are dangerous for staff as well as
for inmates), giving them new authority to release pretrial detainees
whom they believe are not dangerous.
E. Possible Changes in the Nature of the Regulation: An Agenda
for Future Research
As I mentioned in Part I, in a 2004 article Charles Sabel and
William Simon suggest that the terms of decrees in public law litigation have altered over time, becoming more “flexible and provisional,” and more focused on “procedures for ongoing stakeholder
participation and measured accountability.”257 The corrections censuses offer no purchase on decree terms (rather than incidence and
topic), which is regrettable both because Sabel and Simon’s claim
simply cries out for systematic research and because it seems to me
suspect in two ways. First, I do not share Sabel and Simon’s impression of a significant shift in substantive regulatory approach. Typically, the substantive provisions of most decrees strike me as similar to
past decrees. Second, the process by which those substantive provisions are both developed and implemented seems likewise to have stabilized years ago. To the extent that decrees have grown increasingly
flexible, that flexibility tends to apply simply to enforcement, as plaintiffs’ eroding bargaining position has undermined their ability to
256 Telephone Interview with Patrick Bradley, Superintendent, Suffolk County House of
Corrections (Mar. 30, 2001) (regarding Norfolk County House of Correction litigation,
Libby v. Marshall, 653 F. Supp. 359 (D. Mass. 1986), appeal dismissed, 833 F.2d 402 (1st
Cir. 1987)).
257 Sabel & Simon, supra note 65, at 1019.

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obtain stern enforcement measures, a result plaintiffs’ counsel report
as far less than satisfactory.258
Like Sabel and Simon, I have not done systematic research on
this aspect of the topic. No quantitative data are available. I have,
however, read dozens and dozens of decrees, and Shumate v. Wilson,
the California women’s medical care case already discussed,259 seems
to me quite typical. Unlike its litigation process described above, the
actual provisions of the Shumate decree do not look terribly different
from those of medical care decrees in the 1970s or 1980s. As in earlier
cases (for example the Alabama systemwide medical care case in
1972, Newman v. Alabama 260) those provisions ranged from quite precise to extremely general. For example, the section of the Shumate
agreement relating to skilled nursing care stated:
[ ] At the Out-Patient Housing Unit (OPHU) at CIW [the
California Institute for Women], medical staff shall respond to call
buttons; RNs shall make regularly scheduled rounds; and a health
assessment shall be performed before patients are placed in the
individual rooms within the OPHU.
[ ] Placement of an inmate in the SNF [Skilled Nursing Facility]
or OPHU shall be a medical judgment.261

In Newman, similarly, the court insisted on individualized assessments of inmates, done by medical rather than correctional staff,
ordering:
That each inmate sent from another institution to the Medical and
Diagnostic Center for medical reasons shall be seen on arrival by
either a medical technical assistant or a registered nurse and by a
physician within 12 hours following his arrival at the Medical and
Diagnostic Center. No inmate shall be held in “medical hold” for
over a 36-hour period without being seen by a medical technical
assistant, a registered nurse, or a physician.262

And just like the order in Pugh v. Locke described above, the
Shumate settlement occasionally referenced alternative sets of more
detailed standards. For example, one paragraph stated that the
prisons
shall implement appropriate chronic disease guidelines, including
medically necessary patient education provisions. Implementation
258

See E-mail from John Boston, supra note 30.
See supra notes 238–39 and accompanying text.
260 Newman was consolidated for certain purposes with Pugh v. Locke. See supra note
183, for the citations to reported opinions.
261 Settlement Agreement at 11, Shumate v. Wilson, No. CIV S-95-00619 (E.D. Cal.
Aug. 11, 1997) (available as document PC-CA-011-004 at http://clearinghouse.wustl.edu).
262 Newman v. Alabama, 349 F. Supp. 278, 288 (M.D. Ala. 1972).
259

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of the CDC Chronic Care Program shall constitute substantial compliance with this subsection.263

Again, to my eye, Shumate is fairly typical in this regard: Sabel and
Simon’s argument notwithstanding, the substantive provisions of
decrees written now simply do not seem qualitatively different from
those in decrees written years ago.264
Although there seems to be some use of newly fashionable management techniques in newer decrees, it seems to me that public law
litigation has, since its beginning, been the preeminent site of what
Sabel and Simon term “procedures for ongoing stakeholder participation.”265 That is no change. What does seem to me different are
modern enforcement provisions, which have often grown weaker. In
Shumate, the settlement was structured as a conditional dismissal, at
least in part to obtain exemption from the PLRA’s requirements for
prospective relief. A team of experts was designated to conduct compliance review; if the experts found substantial compliance, the plaintiffs agreed not to oppose defendants’ motion for an unconditional
dismissal. If the experts found that defendants were not in substantial
compliance, defendants agreed not to oppose plaintiffs’ motion to
restore the case to the court’s active docket. Thus, Shumate held out
no prospect that a noncompliant agency would have its feet held to
the fire by a judge with the obligation to enforce the terms of a consent decree. And indeed, the case was eventually dismissed, notwithstanding the deep failings of the California prison system’s health
care, which caused Judge Henderson to take the drastic measure of
putting the entire system in receivership this year as a remedy in
another case, Plata v. Davis.266
As one experienced litigator
expressed it recently, Shumate’s settlement was “essentially a private
settlement agreement, and those are categorically weaker than injunctions. The PLRA is as far as I know the only reason a sane plaintiff’s
lawyer would agree to one, unless the case was before a hostile federal
judge.”267
Clearly, however, there are examples of prison decrees that, as
Sabel and Simon highlight, create a remedial framework rather than
set out substantive rights. Indeed, the Plata settlement decree takes
263 Settlement Agreement at 12, Shumate v. Wilson, No. CIV S-95-00619 (E.D. Cal.
Aug. 11, 1997) (available as document PC-CA-011-004 at http://clearinghouse.wustl.edu).
264 See E-mail from John Boston, supra note 30.
265 Sabel & Simon, supra note 65, at 1019.
266 Plata v. Schwarzenegger, No. C-01-1351 (N.D. Cal. Oct. 3, 2005) (findings of fact and
conclusions of law re appointment of receiver) (available as document PC-CA-018-007 at
http://clearinghouse.wustl.edu).
267 E-mail from John Boston, supra note 30.

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precisely this approach.268 But I do not see much evidence that these
kinds of decrees are more common now than they used to be. I concede, however, that while my impression about decree terms is a
strong one, I cannot demonstrate its accuracy any more than Sabel
and Simon could demonstrate its inaccuracy. Resolution will simply
have to await future research.269
CONCLUSION
I have suggested in this paper that the conventional wisdom
about correctional court orders is simply wrong. Part II of this paper
demonstrated that injunctive practice affecting prisons and jails did
not peak in the 1980s, and it did not fade to almost nothing in the
1990s. Indeed, even after the profound impact of the 1996 Prison Litigation Reform Act, injunctions remain a vital part of the system by
which we govern our correctional administration. I suspect that in this
divergence between the actual state of affairs and what academics
have assumed, prison and jail litigation is not unique. There is every
reason to believe that public law litigation and structural reform are
alive and well in many arenas, and that the story of the decline of
public law litigation will frequently prove false on systematic inquiry,
as it has in jails and prisons. Even when there are declines in any
given docket, they may well be countered by increases in another. For
example, if there are fewer mental health facility conditions cases
these days (given the 1970s deinstitutionalization of people with
mental illness270), since the Supreme Court decided Olmstead v.

268 See Stipulation for Injunctive Relief, Plata v. Davis, No. C-01-1351 (N.D. Cal. June
13, 2002) (available as document PC-CA-018-005 at http://clearinghouse.wustl.edu). As
Don Specter, one of the plaintiffs’ lawyers in Plata, explained:
If you take a look at the Plata decree . . . we use the decree more like a constitution to establish broad responsibilities on the defendants and to set forth the
plaintiffs [sic] rights to monitoring and enforcement. I have found that the
remedial process is usually very long and that many things change during the
process so it’s best just to have a framework rather than a [sic] rigid
requirements.
E-mail from Don Specter, supra note 162.
269 A new resource, the Civil Rights Litigation Clearinghouse, will make this kind of
research far more practicable. See Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu (last visited Mar. 5, 2006).
270 See PAUL S. APPELBAUM, ALMOST A REVOLUTION: MENTAL HEALTH LAW AND
THE LIMITS OF CHANGE 49–52 (1994) (describing deinstitutionalization movement); JOHN
Q. LA FOND & MARY L. DURHAM, BACK TO THE ASYLUM: THE FUTURE OF MENTAL
HEALTH LAW AND POLICY IN THE UNITED STATES 12–15 (1992) (same).

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L.C. 271 there are many more cases seeking community placements for
people with mental disabilities.272
Civil rights injunctive practice is a topic with very high stakes
right now because Congress is currently considering the so-called
“Federal Consent Decree Fairness Act,”273 a bill that, if enacted,
would drastically alter remedial law in cases involving state and local
governments in ways similar to the PLRA’s effect on prison and jail
court-order cases. As introduced, the bill would govern “any final
[federal court] order imposing injunctive relief against a State or local
government or a State or local official sued in their official
capacity . . . that is based in whole or part upon the consent or acquiescence of the parties.”274 The bill would allow defendants subject to
such an order to seek termination or modification of the order four
years after its entry or on expiration of the term in office of the
highest governmental authority who signed off on the settlement,
whichever is sooner.275 This is not, itself, of much significance; currently, defendants can file modification/termination motions (under
Federal Rule of Civil Procedure 60(b)) at any point they choose. The
proposed statute’s power comes from the rules it would set for the
decision of such motions: The plaintiff would need to demonstrate
some ongoing need for the order to protect against violation of federal
law.276 The current, court-announced standard, set out in Rufo v.
Inmates of Suffolk County Jail,277 places the burden on the party
seeking modification of a consent decree to demonstrate that “a significant change in circumstances warrants revision of the decree.”278
Thus currently, when a defendant wants a non-correctional consent
decree lifted, that defendant must show either its compliance with the
271 In Olmstead v. L.C., 527 U.S. 581, 607 (1999), the Supreme Court held that the
Americans with Disabilities Act often requires states to deinstitutionalize people with
mental disabilities. Olmstead is often deemed the “Brown v. Board of Education of the
disability rights movement.” See, e.g., Samuel R. Bagenstos, Justice Ginsburg and the Judicial Role in Expanding “We the People”: The Disability Rights Cases, 104 COLUM. L. REV.
49, 49 & n.4 (2004) (citations omitted).
272 See, e.g., Martin Kitchener, Micky Willmott & Charlene Harrington, Home and
Community Based Services: Olmstead and Olmstead-Related Lawsuits (Jan. 2005),
www.pascenter.org/olmstead/downloads/Olmstead_Cases_Table.pdf (describing Olmsteadrelated litigation state by state).
273 The bill exists as H.R. 1229, 109th Cong. (2005) (introduced March 10, 2005 by
Representative (and Majority Whip) Roy Blunt (R-MO)), and S. 489, 109th Cong. (2005)
(introduced March 1, 2005 by Senator Lamar Alexander (R-TN)).
274 S. 489 § 3(a) (proposing to create a new 111 U.S.C. § 1660(a)(1)(A)). See also H.R.
1229 § 3(a) (same).
275 H.R. 1229 & S. 489 § 3(a) (proposing to create a new 111 U.S.C. § 1660(b)(1)).
276 H.R. 1229 & S. 489 § 3(a) (proposing to create a new 111 U.S.C. § 1660(b)(2)).
277 502 U.S. 367 (1992).
278 Id. at 383.

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decree279 or that some unforeseen change in either the facts or the law
justifies altering the bargain the defendant previously struck.280 Thus
consent decree modification under Rufo usually has as its touchstone
the bargain, not the underlying federal law; as the PLRA has already
done for jail and prison court orders, the Consent Decree Fairness Act
would reverse this approach.
As plaintiffs’ side advocates have seen under the PLRA,
reopening a consent decree for adjudication after a year or more can
create an extremely high hurdle for plaintiffs’ lawyers. Because much
of their prior preparation will be stale, they may need to reassemble a
full array of evidence to go to trial. One would therefore expect to see
two sets of plaintiffs-side responses to the bill’s provisions. First,
where plaintiffs have strong cases and where the potential terms of
litigated relief are as attractive (or nearly as attractive) as the terms
offered for negotiated relief, plaintiffs and their counsel will be
inclined to pursue litigated judgments, which are not subject to such
frequent and disadvantageous re-litigation. (Litigation has no such
advantage under the PLRA, and so prison and jail court-order litigation has not followed this path.) Second, where there remain strong
reasons to settle—if, for example, the terms of negotiated relief are
mutually more attractive than the kind of relief a judge is likely to
order—one would expect plaintiffs’ lawyers to include as part of that
relief the kind of ongoing disclosure that will enable them to counter a
termination motion made prior to full decree compliance.281
On the other side of the litigation, there is every reason to expect
that under the Consent Decree Fairness Act, many defendants will file
for termination of many decrees prior to full compliance with them—
decrees relating not only to civil rights of every stripe and flavor but
to environmental law, zoning and land use, medical care (in particular
Medicaid and Medicare compliance), labor law, and many many
more.282 At the same time, it will not be surprising to anyone familiar
279

See supra note 123, and accompanying text.
Rufo, 502 U.S. at 384–90.
281 This kind of ongoing information generation is already somewhat prevalent in consent decrees. See, e.g., Settlement Agreement at 5, Wilkins v. Maryland State Police, No.
CCB-93-468 (D. Md. Dec. 1994) (provisions for information disclosure in settlement of
racial profiling case) (available as document PP-MD-002-002 at http://clearinghouse.wustl.edu); Revised Third Amended Complaint and Jury Demand at 15–18,
Maryland NAACP v. Maryland State Police, No. 1:98-cv-01098-PWG (D. Md. Jan. 13,
2005) (available as document PP-MD-001-002 at http://clearinghouse.wustl.edu)
(describing plaintiffs’ use of information from Wilkins settlement in subsequent lawsuit).
282 The full effect is difficult to predict because, as House Majority Whip Roy Blunt, the
Act’s chief House sponsor, complains, “[t]here’s no record, there’s no clearinghouse, no
way to look and see how many of these decrees are out there.” Congressman Roy Blunt,
Remarks from Panel, American Enterprise Institute, Government by Consent Decree?
280

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with the recent history of jail litigation if defendants—especially small
jurisdictions in which litigation costs loom larger than compliance
costs—file fewer termination motions than the Consent Decree Fairness Act’s proponents now expect. Unless a settlement is working
quite poorly from a defendant’s perspective, there will be little incentive for that defendant to open the door to relitigation, with its
attendant expense and risk. These same jurisdictions will for similar
reasons be particularly hard hit by any increase in litigation to judgment caused by plaintiffs’ reluctance to settle for a decree of such
uncertain future.
In sum, then, the Consent Decree Fairness Act is likely to have
three major impacts. First, whatever values are served by the
thousands of federal consent decrees that currently exist—and these
are primarily, but by no means exclusively, progressive values—will
be disserved by their early annulment. Second, the predictable boom
in litigation-to-judgment, relitigation, and monitoring will surely tax
advocates, forcing them to shrink their dockets and circumscribe their
agendas. Third, smaller jurisdictions in particular may well be hurt by
the Act, rather than aided, because they are the defendants most
interested in avoiding litigation costs, which will be increased not only
for plaintiffs but for defendants as well.
The point is that both the historical trends and current—and
future—situation of injunctive litigation is of far more than academic
interest. Because of the conventional wisdom, progressive policymakers have thought it relatively low-cost to accede to conservative
proposals to restrict injunctive litigation. This is a major mistake.
Public law litigation is far from dead. Even though there is much we
do not (but should) know about it, we can be sure that it continues to
regulate much government conduct in many jurisdictions. It would be
deeply regrettable if uninformed anomie about the current status of
structural injunctive litigation opened the door to enactments that
produce its actual decline. Rather, civil rights injunctions deserve the
energetic defense of those in favor of the values they protect.
More generally, if civil rights injunctive practice is more than a
matter of merely historical interest, the conventional account of
decline has obstructed the need for research into the actual contours
of this crucial regulatory method. With the notable exception of
school litigation of various types, there is scant work in any area of
institutional reform litigation that looks hard and systematically at
(June 9, 2005) (edited transcript available at http://www.aei.org/events/filter.,eventID.1078/
transcript.asp). The Civil Rights Litigation Clearinghouse, http://clearinghouse.wustl.edu,
has begun to address this problem, though it is limited to civil rights, broadly defined.

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court orders. Part III of this paper begins inquiry into the kinds of
things researchers should want to know. What I have found, besides
the continuation of injunctive practice, is a very important shift in its
predicate in prisons. Court orders have gotten more and more
onerous to obtain as the litigation has grown more and more complex.
I have suggested that the reasons for this shift are not principally doctrinal. More important than the top-down message from the Supreme
Court have been two bottom-up factors. First are the influences of
particular hard-fought, well-funded cases—Texas’s system litigation,
Ruiz v. Estelle, and California’s Pelican Bay litigation, Madrid v.
Gomez—that then exert great influence as models of how this kind of
case should be conducted. Second are the shifting norms of practice,
increasing skepticism about causation on the part of judges, and
increasing adherence to big firm “litigation playbooks” by pro bono
partners in the litigation. I am far from confident that these tendencies have worked in the same way in other types of public law litigation—indeed, it seems likely that they have worked differently even in
jail litigation. It is precisely this kind of question that researchers
should be asking.

 

 

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