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Trends in Prison Litigation and the PLRA Margo Schlanger U.C. Irvine L. Rev. 2014

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Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 1 of 23

Trends in Prisoner Litigation, as the PLRA Enters Adulthood
by Margo Schlanger*
Forthcoming, U.C. IRVINE L. REV. (2015)
The Prison Litigation Reform Act (PLRA), 1 enacted in 1996 as part of the Newt Gingrich
“Contract with America,” 2 is now as old as some prisoners. In the year after the statute’s
passage, some commenters labeled it merely “symbolic.” 3 In fact, as was evident nearly
immediately, the PLRA undermined prisoners’ ability to bring, settle, and win lawsuits. 4 The
PLRA conditioned court access on prisoners’ meticulously correct prior use of onerous and
error-inviting prison grievance procedures. 5 It increased filing fees, 6 decreased attorneys’ fees, 7
© Margo Schlanger 2014. The article may be copied and distributed for free or at cost to students or prisoners.
* Professor of Law, University of Michigan. Thanks to Grady Bridges for data management assistance and as
always to Sam Bagenstos for his helpful comments.
1

Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321, 1321-66 to -77 (1996) (codified at 11 U.S.C. § 523 (2012);
18 U.S.C. §§ 3624, 3626 (2012); 28 U.S.C. §§ 1346, 1915, 1915A (2012); 42 U.S.C. §§ 1997–1997h (2012)). The
PLRA was part of the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134,
110 Stat. 1321.
2

NEWT GINGRICH, DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE NATION, CONTRACT
WITH AMERICA: THE BOLD PLAN BY REPRESENTATIVE 53 (Ed Gillespie & Bob Schellhas eds., 1994) (referring
to the PLRA’s predecessor bill, the Taking Back Our Streets Act).
3

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 (1997).
4

For in-depth examination of the PLRA’s impact on damage actions, see Margo Schlanger, Inmate Litigation,
116 HARV. L. REV. 1555 (2003) [hereinafter Schlanger, Inmate Litigation]. For in-depth examination of the PLRA’s
impact on injunctive litigation, see Margo Schlanger, Civil Rights Injunctions Over Time: A Case Study of Jail and
Prison Court Orders, 81 N.Y.U. L. REV. 550 (2006) [hereinafter Schlanger, Civil Rights Injunctions]. Note that the
subsequent description of the PLRA in this paragraph also appears in my article How Prisoners’ Rights Lawyers Are
Preserving the Role of the Courts, U. MIAMI L. REV. (forthcoming 2015).
5

42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of
this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”); see Woodford v. Ngo, 548 U.S. 81 (2006). A good deal
has been written about this provision. See, e.g., Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in
America’s Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 U. PA. J. CONST. L. 139
(2008); Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The Consequence of Procedural
Error, 52 EMORY L.J. 1771 (2003); Alison M. Mikkor, Correcting for Bias and Blind Spots in PLRA Exhaustion
Law, 21 GEO. MASON L. REV. 573 (2014); Eugene Novikov, Comment, Stacking the Deck: Futility and the
Exhaustion Provision of the Prison Litigation Reform Act, 156 U. PA. L. REV. 817 (2008); Giovanna Shay,
Exhausted, 24 FED. SENT. REV. 287 (2012).
6

28 U.S.C. § 1915(b) (2012) (excluding prisoners from the ordinary in forma pauperis ability to file without
payment of fees); see 28 U.S.C. § 1914(a) (2012) (setting the fee for a district court civil action at $350).
7

42 U.S.C. § 1997e(d)(3) (2012) (capping defendants’ liability for attorneys’ fees in civil rights cases at 150%
of the rate paid publically-appointed defense counsel). In addition, the PLRA has been read to further cap
defendants’ liability for attorneys’ fees in monetary civil rights cases at 150% of the judgment. 42 U.S.C.
§ 1997e(d)(2) (2012); see, e.g., Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (en banc) (reversing district
court and disagreeing with appellate panel, holding that this limitation applies even to fees awarded even for a
lawsuit involving a pre-incarceration claim). At least one court has held, however, that the statutory text does not
support this latter limitation. Harris v. Ricci, No. 08-cv-06282-DRD, 2014 WL 1274085 (D.N.J. Mar. 28, 2014).

Electronic copy available at: http://ssrn.com/abstract=2506378

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 2 of 23

and limited damages. 8 It subjected injunctive settlements to the scope limitations usually
applicable only to litigated injunctions. 9 It made prison and jail population caps—previously
common—far more difficult to obtain. 10 And it put in place a rule inviting frequent relitigation of
injunctive remedies, whether settled or litigated. 11
The resulting impact on jail and prison litigation has been extremely substantial. In two
articles about a decade ago, I presented descriptive statistics showing the PLRA-caused decline
in civil rights filings and plaintiffs’ victories, 12 and the likewise declining prevalence of courtordered regulation of jails and prisons. 13 More up-to-date information has not been published, so
here I update those statistics for use by policymakers, judges, and other researchers, and discuss
them briefly. I look in Parts I through III at damage actions, using primarily the data compiled by
the Administrative Office of the U.S. Courts (the AO) for each federal district court case
“terminated” (that is, marked complete by a district court, whether provisionally—say, pending
appeal—or finally). These data are discussed in this Article’s Technical Appendix, which
follows the main text; replication code is also posted online. 14 Part I examines prisoner filings
over time and by state. Part II examines outcomes over time and compares outcomes in other
case categories. And Part III looks at litigated damages. (Because the AO’s data on damages are
error-ridden, 15 I supplement the AO database with docket-based research into individual cases.)
All three Parts uncover a number of topics that are ripe for additional research.
In Part IV, I move to the topic of injunctive prison and jail litigation—cases in which
prisoner plaintiffs seek a change in policy or other aspects of prison conditions. The PLRA was
motivated in large part by Republican discontent with plaintiffs’ successes in such litigation, 16
and Part IV demonstrates more comprehensively than prior data that it has succeeded in radically
shrinking—but not eliminating—the coverage of such orders.
8

42 U.S.C. § 1997e(e) (2012) (“No Federal civil action may be brought by a prisoner confined in a jail, prison,
or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of
physical injury or the commission of a sexual act.”); see, e.g., Hilary Detmold, Note, ‘Tis Enough, ‘Twill Serve:
Defining Physical Injury under the Prison Litigation Reform Act, 46 SUFFOLK U. L. REV. 1111 (2013).
9

18 U.S.C. § 3626(a)(1)(A) (2012) (“Prospective relief in any civil action with respect to prison conditions
shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or
plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the Federal right.”).
10

18 U.S.C. § 3626(a)(3) (2012) (setting out procedural and substantive hurdles to obtaining a “prisoner
release order”); see also Plata v. Brown, 131 S.Ct. 1910 (2011) (affirming imposition of such an order in California).
11

18 U.S.C. § 3626(b) (2012) (allowing defendants in prison conditions cases to periodically seek
“termination” of previously entered injunctions).
12

See, e.g., Schlanger, Inmate Litigation, supra note 4.

13

See, e.g., Schlanger, Civil Rights Injunctions, supra note 4.

14

See http://margoschlanger.net, under “Publications.” {Not posted yet}

15

See Theodore Eisenberg & Margo Schlanger, The Reliability of the Administrative Office of the U.S. Courts
Dasabase: An Initial Empirical Analysis, 78 NOTRE DAME L. REV. 1455 (2003).
16

See, e.g., 141 CONG. REC. S14,418 (daily ed. Sept. 27, 1995) (statement of Sen. Hatch in support of S. 1279:
“While prison conditions that actually violate the Constitution should not be allowed to persist, I believe that the
courts have gone too far in micromanaging our Nation’s prisons.”).

Electronic copy available at: http://ssrn.com/abstract=2506378

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 3 of 23

I. Prison Litigation Filings
The PLRA’s sharp impact on the prevalence and outcomes in prison litigation is clear.
Begin with filings. These are affected by numerous PLRA provisions, including: the rule that
filing fees are unwaivable for indigent prisoners; 17 the requirement of administrative
exhaustion 18 (which discourages lawsuits where such exhaustion has not occurred, since they
will almost certainly fail); the attorneys’ fees limits; 19 and the three-strikes requirement
compelling frequent lawsuit filers to satisfy filing fees in advance without regard to their ability
to pay. 20 As before the PLRA, litigation remains one of the few avenues for prisoners to seek
redress for adverse conditions or other affronts to their rights. Accordingly, litigation
continues—but at a much reduced rate. Table 1 demonstrates. It shows jail and prison
populations from 1970 to the present, along with federal court filings categorized by the courts as
dealing with “prisoner civil rights” or “prison conditions.” 21 Figures A and B present some of
the same information in graphic form—Figure A shows filings compared to jail and prison
population, and Figure B shows filing rates compared to jail and prison population.

17

See 28 U.S.C. § 1915(b) (2012).

18

See 42 U.S.C. § 1997e(a) (2012).

19

See 42 U.S.C. § 1997e(e) (2012).

20

See 28 U.S.C. § 1915(g) (2012) (“In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section [that is, in forma pauperis] if the prisoner has, on 3 or more prior
occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States
that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be
granted, unless the prisoner is under imminent danger of serious physical injury.”).
21

Litigation figures are calculated using data released annually by the Administrative Office of the U.S.
Courts, available in digital form from the Inter-university Consortium for Political and Social Research at
http://www.icpsr.umich.edu/icpsrweb/ICPSR/series/00072/studies. Prisoner population figures come from a variety
of publications by the Bureau of Justice Statistics, a component of the U.S. Department of Justice. Sources are set
out comprehensively in the Technical Appendix that follows this Article.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 4 of 23

TABLE 1: PRISON AND JAIL POPULATION AND PRISONER CIVIL RIGHTS FILINGS
22
IN FEDERAL DISTRICT COURT, FISCAL YEARS 1970-2012
Fiscal
year
of
filing
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

Incarcerated population

Total
357,292
358,061
356,092
364,211
378,466
413,816
438,000
449,563
453,980
474,589
503,586
556,814
614,914
651,439
678,905
752,603
806,063
853,114
942,827
1,070,227
1,151,457
1,215,144
1,292,465
1,375,536
1,469,904
1,588,370
1,643,196
1,733,150
1,816,528
1,889,538
1,915,701
1,969,747
2,035,529
2,082,145
2,137,476
2,189,696
2,260,714
2,295,982
2,302,657
2,274,099
2,255,188
2,227,723
2,221,283

State
prison
176,391
177,113
174,379
181,396
196,105
229,685
248,883
258,643
269,765
281,233
295,819
333,251
375,603
394,953
417,389
451,812
496,834
520,336
562,605
629,995
684,544
728,605
778,495
828,566
904,647
989,004
1,032,676
1,074,809
1,111,927
1,155,878
1,177,240
1,179,954
1,209,145
1,225,971
1,244,216
1,261,071
1,297,536
1,316,105
1,324,539
1,319,563
1,314,445
1,290,212
1,266,999

Federal
prison
20,038
20,948
21,713
22,815
22,361
24,131
29,117
30,920
26,285
23,356
23,779
26,778
27,311
28,945
30,875
35,781
43,712
42,478
44,205
53,387
58,838
63,930
72,071
80,815
85,500
89,538
95,088
101,755
110,793
125,682
140,064
149,852
158,216
168,144
177,600
186,364
190,844
197,285
198,414
205,087
206,968
214,774
216,915

Jail
160,863
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
160,000*
157,930
170,000*
183,988
196,785
212,000
227,541
230,641
265,010
265,517
290,300
336,017
386,845
408,075
422,609
441,899
466,155
479,757
509,828
515,432
556,586
593,808
607,978
598,397
639,941
668,168
688,030
715,660
742,261
772,334
782,592
779,704
749,449
733,775
722,737
737,369

Total
Filings
2,245
3,179
3,635
4,665
5,573
6,527
7,096
8,347
10,087
11,713
13,079
16,328
16,809
17,512
18,337
18,485
20,360
22,067
22,642
23,737
24,051
24,352
28,544
31,693
36,595
39,053
38,262
26,095
24,212
23,512
23,357
22,131
21,988
22,061
21,553
22,484
22,469
21,978
23,555
22,698
22,736
23,362
22,662

* Estimates (jail population is unavailable for these years).
22

See infra Technical App. at A, C–D.

Prisoner civil rights filings
in federal district court
Nonfederal
Federal
Filings
defendants
defendants / 1000 prisoners
2,092
153
6.3
2,969
210
8.9*
3,393
242
10.2*
4,257
408
12.8*
5,185
388
14.7*
6,020
507
15.8*
6,702
394
16.2*
7,842
505
18.6*
9,520
567
22.2
11,149
564
24.7*
12,496
583
26.0
15,539
789
29.3
16,075
734
27.3
16,788
724
26.9
17,468
869
27.0
17,658
827
24.6
19,654
706
25.3
21,410
657
25.9
21,866
776
24.0
22,804
933
22.2
23,028
1,023
20.9
23,567
785
20.0
27,723
821
22.1
30,842
851
23.0
35,550
1,045
24.9
38,022
1,031
24.6
37,126
1,136
23.3
25,226
869
15.1
23,304
908
13.3
22,645
867
12.4
22,399
958
12.2
21,224
907
11.2
21,044
944
10.8
20,914
1,147
10.6
20,337
1,216
10.1
21,317
1,167
10.3
21,443
1,026
9.9
20,825
1,153
9.6
22,395
1,160
10.2
21,552
1,146
10.0
21,614
1,122
10.1
22,067
1,295
10.5
21,628
1,034
10.2

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 5 of 23

FIGURE A: PRISONER POPULATION AND CIVIL RIGHTS FILINGS, FY 1970-FY 2012. 23

FIGURE B: PRISONER POPULATION & CIVIL RIGHTS FILINGS PER 1000 PRISONERS, FY 1970-2012 24

23

See supra note 22.

24

See supra note 22.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 6 of 23

The national trends in Table 1 and Figures A and B are clear. A steep increase in prisoner civil
rights litigation combined in the 1970s with a steep increase in incarcerated population. The
filing rate slowly declined in the 1980s, but the increase in jail and prison population nonetheless
pushed up raw filings. Then, as in the 1970s, the 1990s saw an increase in both jail and prison
population and filings rates, until 1995. In 1996, the PLRA immediately transformed the
litigation landscape. After a very steep decline in both filings and filing rates in 1996 and 1997,
rates continued to shrink for another decade (although the increasing incarcerated population
meant that the resulting number of filings increased a bit). Since 2007, filing rates, prison
population, and filings have all plateaued.
The state-by-state story is far more varied. Table 2 presents the data: it compares 1995
(the year prior to the PLRA) and 2011 (the latest year for which state-by-state jail information—
and therefore filing rate information—is available). The first set of columns show the jail and
prison population, 25 the prisoner civil rights filings in federal district court, and the resulting
filing rate in 1995. The states are set out in rank order, with Iowa, the state whose prisoners were
in 1995 the most litigious, ranked 1. The second set of columns presents the same information
for 2011. The third set of columns shows the change over the 16 year period, as a simple change
and as a percent change—so Iowa’s change from a filing rate of 101.7 to 14.5 federal lawsuits
per 1000 prisoners is shown both as a change of 87.2 (101.7-14.5), and 85.7%. Nationwide the
filing rate shrank by 14.1 filings per 1000 prisoners, and by nearly 60%, from 24.6 to 10.5
lawsuits per 1000 prisoners. For 30 states, the proportional change was that big or bigger, and for
most of the rest, nearly as big. But as Table 2 presents, for a few states the change was far
smaller. California, in fact, has seen almost no change in filing rate—although it is alone in that
experience. Figure C puts the penultimate columns of Table 2 into a histogram, to make plainer
the varied experience of the states.

25

Because state-by-state jail population is not available from 1994 to 1999 jail populations for those years are
calculated using a linear interpolation between the 1993 and 2000 figures for each state.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 7 of 23

TABLE 2: CHANGE IN PRISONER FILINGS IN U.S. DISTRICT COURT AND FILING RATES BY STATE,
FY 1995-2011 26
1995
State
United States
Iowa
Arkansas
Mississippi
Nebraska
Missouri
Virginia
Alabama
Delaware
Louisiana
Nevada
Arizona
Maine
Kentucky
Indiana
Tennessee
Pennsylvania
Colorado
Wyoming
Montana
Vermont
Hawaii
Kansas
Wisconsin
Utah
West Virginia
South Carolina
Washington
Connecticut
Georgia
Illinois
Maryland
Michigan
Oklahoma
North Carolina
Rhode Island
Texas
New York
Florida
South Dakota
Alaska
Oregon
New Mexico
Idaho
New Jersey
New Hampshire
Ohio
California
Minnesota
Massachusetts
North Dakota

26

2011

Jail and
prison pop.

Filings

1,588,370

39,053

24.6

8,015
11,786
16,273
4,733
25,883
41,047
31,639
4,799
38,106
11,898
32,628
2,329
22,084
26,922
30,799
63,720
20,278
1,913
2,575
1,245
2,812
12,373
21,275
6,633
6,855
26,927
20,185
15,740
64,977
56,827
32,295
56,049
21,686
39,360
2,854
194,719
103,799
110,948
3,239
2,876
14,327
8,022
4,978
42,701
3,244
57,732
218,145
11,515
19,067
1,112

815
967
1,035
297
1,523
2,166
1,403
205
1,548
475
1,247
87
824
967
1,076
2,114
634
57
76
35
76
333
559
169
169
648
481
370
1,496
1,270
708
1,217
437
760
54
3,597
1,860
1,968
57
50
227
124
75
639
47
746
2,575
124
153
8

101.7
82.0
63.6
62.8
58.8
52.8
44.3
42.7
40.6
39.9
38.2
37.4
37.3
35.9
34.9
33.2
31.3
29.8
29.5
28.1
27.0
26.9
26.3
25.5
24.7
24.1
23.8
23.5
23.0
22.3
21.9
21.7
20.2
19.3
18.9
18.5
17.9
17.7
17.6
17.4
15.8
15.5
15.1
15.0
14.5
12.9
11.8
10.8
8.0
7.2

See supra note 22.

Filing
rate

Rate
rank
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
41
42
43
44
45
46
47
48
49
50

Jail and
prison pop.

Filing
rate

Filings

2,227,723

23,362

10.5

13,214
25,216
32,095
8,063
43,635
62,888
44,571
6,546
55,651
19,242
58,537
3,300
40,532
48,005
48,889
100,495
37,998
3,656
4,160
2,053
6,294
18,871
37,641
12,488
19,029
41,898
30,827
19,118
105,943
74,229
36,971
60,995
37,698
64,392
3,032
259,155
90,508
172,361
5,939
6,289
21,532
16,165
11,188
45,042
4,486
72,688
238,496
20,073
22,978
2,496

192
731
440
54
493
625
637
145
975
367
561
31
249
394
615
1,571
379
12
68
13
51
114
312
69
143
463
345
148
1,138
1,421
467
734
188
424
21
1,618
1,394
1,349
44
11
186
73
103
504
45
271
2,811
88
97
13

14.5
29.0
13.7
6.7
11.3
9.9
14.3
22.2
17.5
19.1
9.6
9.4
6.1
8.2
12.6
15.6
10.0
3.3
16.3
6.3
8.1
6.0
8.3
5.5
7.5
11.1
11.2
7.7
10.7
19.1
12.6
12.0
5.0
6.6
6.9
6.2
15.4
7.8
7.4
1.7
8.6
4.5
9.2
11.2
10.0
3.7
11.8
4.4
4.2
5.2

Rate
rank
9
1
11
36
16
23
10
2
5
4
24
25
40
29
13
7
22
49
6
38
30
41
28
42
33
19
17
32
20
3
12
14
44
37
35
39
8
31
34
50
27
45
26
18
21
48
15
46
47
43

1995-2011
Rate Change
Rank
N
%
change
14.1

57.3%

87.2
53.1
49.9
56.1
47.5
42.8
30.1
20.6
23.1
20.9
28.6
28.0
31.2
27.7
22.4
17.5
21.3
26.5
13.2
21.8
18.9
20.9
18.0
20.0
17.1
13.0
12.6
15.8
12.3
3.2
9.3
9.7
15.2
12.7
12.0
12.2
2.5
9.9
10.2
15.6
7.2
10.9
5.9
3.8
4.5
9.2
0.0
6.4
3.8
2.0

85.7%
64.7%
78.4%
89.3%
80.8%
81.2%
67.8%
48.1%
56.9%
52.2%
74.9%
74.9%
83.5%
77.1%
64.0%
52.9%
68.1%
89.0%
44.6%
77.5%
70.0%
77.6%
68.5%
78.3%
69.5%
54.1%
53.0%
67.1%
53.3%
14.3%
42.4%
44.6%
75.3%
65.9%
63.4%
66.2%
14.0%
55.9%
57.9%
89.9%
45.5%
70.8%
38.9%
25.2%
30.8%
71.1%
0.2%
59.3%
47.4%
27.6%

-8
1
-8
-32
-11
-17
-3
6
4
6
-13
-13
-27
-15
2
9
-5
-31
13
-18
-9
-19
-5
-18
-8
7
10
-4
9
27
19
18
-11
-3
0
-3
29
7
5
-10
14
-3
17
26
24
-2
32
2
2
7

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 8 of 23

FIGURE C: PERCENT DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT,
FY 1995-2011, BY STATE.

Figures D and E focus additional attention on the varying effects of the PLRA by state.
Figure D presents the six states that have experienced the steepest decline in filing rates since
1995, showing their changed filing rates by year. (So for example, a drop of 10 filings per 1000
inmates from the rate in 1995—whatever that rate was—is shown as -10.) Figure E is the same
information for the six states that have experienced the shallowest decline.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 9 of 23

FIGURE D: DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT, FY 1995-2011,
SIX STATES WITH LARGEST DECLINES. 27

FIGURE E: DECLINE IN PRISONER FILING RATE IN U.S. DISTRICT COURT, FY 1995-2011,
SEVEN STATES WITH SMALLEST DECLINES. 28

Figure D’s states look very like the nation as a whole, although the pattern is more
pronounced. But Figure E’s patterns are quite different. While the trend lines are not entirely
27

See supra note 22.

28

See supra note 22.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 10 of 23

consistent state to state, they generally are U-shaped curves. That is, even in these least-affected
states, filing rates declined for some years after the PLRA’s passage. At that point, something—
I imagine something different in each state—turned that trend around and caused the filing rate
to increase. Future research might uncover what that spur was. We can guess that it was not
appellate precedent; the states in question are from the First, Second, Third, Seventh, Eighth, and
Ninth Circuits—no Circuit has more than one state represented in the bottom six.
II. Prison Litigation Outcomes
One might expect that the drastic pruning of the prisoner civil rights docket that occurred
beginning in 1996 would tilt the docket towards higher quality cases—so that prisoner success
rates would go up. However, I previously demonstrated, using data through 2001, that the PLRA
not only made prisoner civil rights cases harder to bring, as illustrated above, but also made them
harder to win. 29 In particular, prisoners’ cases are thrown out of court for failure to properly
complete often-complicated grievance procedures, 30 or because they do not allege physical
injury, which some courts read the PLRA to require for recovery even in constitutional cases. 31
Now that we have another decade of data, it’s worth reexamining this issue, to see if trends have
continued, moderated, or reversed.
More data, presented in Table 3, confirms my earlier conclusions. The table presents
outcomes in prisoners’ federal civil rights cases, resolved from Fiscal Year 1988 through 2012,
the last year for which data is available. (1988 is chosen as a start date because of federal coding
protocol changes prior to that year.) Each row is a year; each column is a particular outcome.
Scanning the table one column at a time, to detect trends over time, reveals that the courts are
becoming less and less hospitable for prisoners’ claims. Column (a) shows filings; column (b)
terminations; and column (c) the portion of those terminations that constituted judgments. (Most
non-judgments are transfers to another court.) Most remaining outcomes are calculated as a
proportion of judgment dispositions. Column (d) is pretrial decisions for the defendant; tracing it
through the years shows that after the PLRA, such decisions increased although not
overwhelmingly so. On the other side, pretrial victories for the plaintiff, in column (e), have
declined, though some of that decline predates the PLRA. 32 Column (f) shows a decline in
settlements, much but not all post-dating the PLRA. Column (g) shows a similar decline in
voluntary dismissals, which are often settlements as well. And column (h) shows a decline in
trials, again much of it subsequent to the PLRA. (Plaintiffs’ victories at those decreasing
numbers of trials, in column (i), appear not to have changed.) Columns (j) and (k) show the
timing of settlements, before or after “issue is joined,” (that is, before or after the filing of an
answer to the civil complaint). The declining portion of settlements in column (j) suggests that
settlements have become harder to come by for plaintiffs. And finally, column (l) sums up the
29

See Schlanger, Inmate Litigation, supra note 4, at 1644–64.

30

See supra note 5.

31

See supra note 8.

32

This variable is sufficiently error-ridden, at least in the prisoner litigation data, to counsel against reliance on
it. See text accompanying Table 6, discussing high error rates.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 11 of 23

portion of the docket in which it appears plaintiffs may have succeeded in any way, adding
together settlements, voluntary dismissals, pretrial victories, and victories at trial. Those numbers
are down substantially since the early 1990s.
In short, in cases brought by prisoners, the government defendants are winning more
cases pretrial, settling fewer matters, and going to trial less often. Those settlements that do
occur are harder fought; they are finalized later in the litigation process. Plaintiffs are,
correspondingly, winning and settling less often, and losing outright more often. Probably not
all these changes were caused by the PLRA—several of the trend lines seem to start prior to the
statute’s enactment. But given the PLRA’s very definite anti-plaintiff tilt, it seems nearly certain
that the statute has caused at least some of the declining access to court remedies demonstrated in
Table 3.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 12 of 23

TABLE 3: OUTCOMES IN PRISONER CIVIL RIGHTS CASES IN FEDERAL DISTRICT COURT, FY 1995-2012. 33
Outcomes, as % of judgment dispositions

(a)

Fiscal Year

1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
33

Filings

22,642
23,737
24,051
24,352
28,544
31,693
36,595
39,053
38,262
26,095
24,212
23,512
23,357
22,131
21,988
22,061
21,553
22,484
22,469
21,978
23,555
22,698
22,736
23,362
22,662

See supra note 22.

(b)

Terminations

24,077
24,714
24,864
24,877
28,357
31,893
36,098
41,201
42,522
34,982
29,938
26,561
25,176
24,572
24,245
23,653
23,181
23,712
24,846
23,630
25,097
24,454
24,781
24,760
24,673

(c)

(d)

(e)

Judgments

Pretrial
decisions
for deft.

Pretrial
decisions
for plaint.

(as % of
terminations)

96.5%
96.5%
96.0%
95.0%
94.9%
95.1%
94.9%
94.8%
95.0%
96.0%
95.9%
94.7%
93.7%
93.9%
93.9%
93.6%
92.8%
92.5%
93.6%
92.5%
92.2%
91.9%
91.3%
90.4%
90.9%

83.2%
82.1%
82.7%
82.1%
80.2%
81.2%
80.9%
83.5%
84.5%
83.8%
85.2%
86.5%
86.3%
87.0%
87.9%
88.0%
86.0%
85.0%
83.2%
82.0%
85.3%
87.0%
85.9%
85.8%
84.9%

1.1%
1.0%
1.1%
0.9%
1.2%
1.0%
0.8%
0.7%
0.6%
0.7%
0.5%
0.5%
0.4%
0.4%
0.4%
0.6%
0.4%
0.3%
0.3%
0.2%
0.5%
0.5%
0.5%
0.4%
0.5%

(f)

Settlements

7.1%
7.3%
7.6%
7.7%
7.6%
6.8%
7.2%
6.2%
5.5%
5.4%
5.2%
4.7%
4.2%
3.9%
3.6%
3.8%
3.8%
3.8%
3.9%
3.8%
3.7%
4.2%
4.8%
4.9%
5.0%

(g)

Voluntary
dismissals

4.0%
5.1%
5.0%
6.1%
7.5%
8.0%
7.2%
6.5%
6.3%
6.8%
6.0%
5.2%
5.7%
5.7%
5.6%
5.1%
4.8%
4.4%
4.0%
4.7%
4.6%
5.3%
5.2%
5.4%
5.4%

Timing of settlements,
as % of settlements/
vol. dismissals

(h)

(i)
Plaintiffs’
trial
victories

(j)

Before
issue
Trials (as % of trials) joined

3.6%
3.7%
3.4%
3.1%
3.3%
2.8%
2.9%
2.5%
2.5%
2.8%
2.5%
2.4%
2.4%
2.1%
1.8%
1.4%
1.4%
1.2%
1.2%
1.3%
1.2%
1.3%
1.3%
1.2%
1.3%

13.6%
14.0%
16.6%
15.2%
12.1%
15.3%
13.1%
10.7%
9.5%
10.7%
8.6%
12.1%
13.6%
14.0%
8.8%
14.1%
13.2%
10.0%
12.9%
9.4%
15.1%
13.1%
14.4%
11.6%
11.9%

58.5%
52.3%
48.8%
52.1%
60.2%
60.0%
53.8%
61.3%
61.8%
61.2%
60.7%
56.7%
54.0%
53.9%
55.2%
53.2%
55.4%
53.4%
54.3%
56.7%
53.2%
51.2%
47.6%
49.5%
50.6%

(k)
After
issue
joined

41.5%
47.7%
51.2%
47.9%
39.8%
40.0%
46.2%
38.7%
38.2%
38.8%
39.3%
43.3%
46.0%
46.1%
44.8%
46.8%
44.6%
46.6%
45.7%
43.3%
46.8%
48.8%
52.4%
50.5%
49.4%

(l)
All plaint.
successes
(as % of
judgments)

12.6%
13.9%
14.3%
15.2%
16.8%
16.2%
15.6%
13.7%
12.7%
13.2%
12.0%
10.7%
10.7%
10.3%
9.8%
9.7%
9.2%
8.7%
8.4%
8.9%
9.0%
10.2%
10.7%
11.0%
11.1%

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 13 of 23

Table 4 next provides some context for the very limited success prisoner plaintiffs experience, setting out the same outcome
information but for other categories of cases, all in Fiscal Year 2012. As it shows, only in the other prisoner category—habeas cases
and other similar quasi-criminal matters—do plaintiffs fare anywhere close to as badly.
TABLE 4: OUTCOMES IN FEDERAL DISTRICT COURT CASES BY CASE TYPE, FY 2012. 34
Timing of settlements,
as % of settlements/
vol. dismissals

Outcomes (as % of judgments)
(a)

(b)

(c)

(d)

(e)

Judgments

Pretrial
decisions
for deft.

Pretrial
decisions
for plaint.

(as % of

Fiscal Year

Filings

Terminations terminations)

(f)

Settlements

(g)

Voluntary
dismissals

(h)

(i)
Plaintiffs’
trial
victories

Trials (as % of trials)

(j)

(k)

Before
issue
joined

After
issue
joined

(l)
All plaint.
successes
(as % of
judgments)

All

278,442

271,572

87.9%

41.7%

6.8%

32.6%

14.5%

1.1%

43.4%

42.2%

57.8%

54.4%

Habeas, quasi-crim.

26,241

27,245

89.9%

90.2%

2.1%

2.2%

2.3%

0.4%

35.9%

77.0%

23.0%

6.7%

Prisoner civil rights

22,662

24,673

90.9%

84.9%

0.5%

5.0%

5.4%

1.3%

11.9%

50.6%

49.4%

11.1%

Bankruptcy

3,778

2,934

86.8%

52.2%

6.6%

8.6%

8.3%

0.2%

75.0%

56.0%

44.0%

23.7%

Immigration

1,742

1,821

92.9%

57.4%

2.1%

10.5%

27.1%

0.2%

100.0%

77.1%

22.9%

40.0%

Civil rights

19,707

20,661

92.3%

48.8%

1.9%

32.9%

12.7%

3.1%

28.3%

26.4%

73.6%

48.4%

Statutory actions

49,846

48,888

84.4%

29.3%

7.8%

26.2%

23.3%

0.7%

64.3%

51.3%

48.7%

57.7%

5,714

5,253

79.0%

39.0%

17.9%

24.0%

17.9%

0.8%

48.5%

45.3%

54.7%

60.1%

Civil rights empl.

16,261

16,984

92.8%

37.7%

1.1%

45.0%

13.9%

1.8%

34.3%

16.5%

83.5%

60.7%

Torts (nonproduct)

18,051

19,580

85.6%

31.8%

2.2%

46.6%

16.0%

2.7%

52.6%

21.3%

78.7%

66.2%

U.S. Plaintiff

14,055

14,609

89.9%

28.5%

38.4%

15.4%

16.9%

0.3%

63.2%

60.2%

39.8%

70.9%

Contract

23,859

26,358

88.0%

25.0%

12.1%

40.5%

20.3%

1.6%

68.9%

29.0%

71.0%

73.9%

Product liability

22,942

43,914

83.6%

24.1%

0.1%

64.5%

11.0%

0.2%

30.8%

59.6%

40.4%

75.7%

Labor and empl.

18,752

18,652

93.8%

19.0%

15.7%

43.7%

20.5%

0.8%

59.3%

37.0%

63.0%

80.3%

Other

34

See supra note 22.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 14 of 23

Table 5 provides one piece of the explanation, setting out the proportion of cases, by type
of suit, litigated by plaintiffs without counsel. It shows that prisoner cases, as one would expect,
are overwhelmingly pro se—and at a much higher rate than prior to the PLRA, which drastically
limited attorneys’ fees.
TABLE 5: PRO SE LITIGATION IN U.S. DISTRICT COURTS,
CASES TERMINATED SELECTED FISCAL YEARS 35
Case Category
1996
2000
Contract
2.5%
2.6%
Torts (nonproduct)
5.4%
6.0%
Product liability
0.8%
1.5%
Civil rights
29.8%
30.1%
Civil rights employment
16.3%
20.3%
Prisoner civil rights
83.3%
95.6%
Labor and employment
2.9%
3.8%
Statutory actions
6.0%
6.5%
U.S. Plaintiff
3.4%
1.3%
Habeas, other quasi-criminal
71.8%
84.1%
Bankruptcy
12.8%
18.2%
Immigration
Other
11.8%
19.7%
Total
26.9%
26.2%
Total w/o prisoner or habeas cases
7.8%
8.6%

2006
3.7%
8.7%
1.5%
32.7%
19.2%
96.5%
3.0%
6.4%
4.6%
84.8%
19.0%
13.6%
25.0%
8.2%

2012
4.4%
12.6%
1.1%
34.6%
19.8%
94.9%
2.9%
8.2%
13.2%
88.8%
20.5%
35.4%
14.5%
26.1%
10.5%

III. Damages in Prison Litigation
As the last aspect of my examination of prisoner damage actions, I look at the damages
themselves. I previously conducted a study of cases terminated in 1993, and found that (after
excluding one very large outlying award) the average damages in cases with trial judgments for
prisoner plaintiffs were about $18,800, with a median of a mere $1000. 36 I decided to repeat this
study, to see what might have changed in the two decades since. To do this, I examined—using
the docket sheet and other court documents—each case coded by the court system as ending with
a trial or other litigated judgment in Fiscal Year 2012, the latest data available. The AO’s coding
is somewhat imprecise, particularly for the non-trials. Of those cases that met these intial
selection criteria, most turned out to be defendants’ victories, and others turned out to be
settlements: I excluded both. Table 6 presents the results. As it shows, case results for 2012 are
entirely consonant with the 1993 study. Of 58 litigated judgments, the mean award was under
$22,000 for trials and under $19,000 for non-trials, with a median of just $1525 for trials and
$7000 for non-trials. Across all the cases, nationwide litigated damages totaled a mere
$1,000,000.
35

See supra note 22.

36

See Schlanger, Inmate Litigation, supra note 4 at 1603.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 15 of 23

TABLE 6: PRISONER CIVIL RIGHTS LITIGATED VICTORIES, FY 2012 37
(EXCLUDES SETTLEMENTS)
Plaintiffs Wins
Injunctive matters
<= $1000
$1001-13,000
25,000-80,000
$100,000 +
Total damages awarded
Cases with damages
Average damages per case
Median damages per case

Trials
36
4
15
8
7
2
$700,908
32
$21,903
$ 1,525

Non-trials
21
3
3
12
2
1
$339,862
18
$18,881
$7,000

All
57
7
18
20
9
3
$1,040,770
50
$20,815
$4,185

Thus when prisoners do litigate all the way to victory, they tend to win pretty small.
IV. Court Orders
Since the 1970s, court orders have been a major source of regulation and oversight for
American jails and prisons—whether those orders entailed active judicial supervision, intense
involvement of plaintiffs’ counsel or other monitors, or simply a court-enforceable set of
constraints on corrections officials’ discretion. 38 The PLRA altered this system with provisions
that promote termination of existing court orders, and others that shortened the life span of new
orders. 39 The impact took some time to manifest, but is now very clear. Table 7 shows the
results. 40

37

See infra Technical App. at B.

38

See Schlanger, Civil Rights Injunctions, supra note 4, at 552.

39

See supra notes 10–11.

40

Table 7 is based on data reported by jail and prison officials in the censuses conducted by the Bureau of
Justice Statistics every five or six years. Since 1983, the censuses have included questions about the existence of
court orders on a variety of (specified) topics. The resulting data is the most comprehensive information available,
although it includes demonstrable and important omissions. For example, there has been a court order involving
mental health care at every California prison since 1997, and another involving medical care since 2002. For
information on the mental health orders, see Coleman v. Brown, No. 2:90-cv-00520 (E.D. Cal.), CIVIL RIGHTS LITIG.
CLEARINGHOUSE, http://www.clearinghouse.net/detail.php?id=573. For information on the medical decree, see Plata
v. Brown, No. 3:01-cv-01351 (N.D. Cal.), CIVIL RIGHTS LITIG. CLEARINGHOUSE,
http://www.clearinghouse.net/detail.php?id=589, and the Order for Adopting Class Action Stipulation as Fair,
Reasonable, and Adequate, Plata v. Davis, No. 3:01-cv-01351 (N.D. Cal. June 20, 2002), available at
http://www.clearinghouse.net/chDocs/public/PC-CA-0018-0005.pdf; and the underlying Stipulation for Injunctive
Relief (June 13, 2002), at http://www.clearinghouse.net/chDocs/public/PC-CA-0018-0001.pdf. Yet no California
prison reported any court order in the Census responses in 2005. So the data in Table 7 should be taken as indicative
of trends rather than dispositive about any given state or facility.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 16 of 23

TABLE 7: INCIDENCE OF COURT ORDERS, LOCAL JAILS AND STATE PRISONS, 1983-2006 41

Local
Jails

State
Prisons

Year
1983
1988
1993
1999
2006
1984
1990
1995
2000
2005

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

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

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

Columns (a) and (c) show the total number of facilities, and total incarcerated population, for
jails and prisons in each census year. Columns (b) and (d) then show the proportion of those
totals in which the census responses report court orders. Looking at columns (b) and (d) in the
censuses most immediately following the PLRA—1999 for jails and 2000 for prisons—suggests
only a very limited impact of the statute. (This is data I reported in 2006, before data from the
next iteration of the census was available.) The next census administration is the one where the
PLRA’s impact is much more marked: the decline in covered facilities (column b) is very
significant, and the decline in covered population (column d) even more so.
And finally, Table 8 emphasizes the new rarity of system-wide court order coverage. The
table’s first row lists, by census year, how many states report one or more facilities subject to
court order. That number remains substantial. But the second row shows states in which 60% or
more of the facilities or population are covered by court order—and that row demonstrates that
where this kind of system-wide (or close to it) coverage used to be quite common, it is now rare.
In 2005 and 2006, respectively, only 5 states reported system-wide court order coverage of their
prisons, and only 2 states of their jails. 42

41
42

See infra Technical App. at E–F. See also margoschlanger.net[location unknown].

I define “system-wide” as reaching 60% or more facilities or population in a state, in a given census
administration, after private and community-corrections facilities are excluded.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 17 of 23

TABLE 8: SYSTEM-WIDE COURT ORDER COVERAGE, BY STATE 43
1983

Local Jails (n = 47)
1988 1993 1999

2006

1984

State Prisons (n = 51)
1990 1995 2000

2005

States with any court
orders

44

46

43

43

39

43

44

41

30

25

Total states with systemwide orders*

8

8

9

3

2

11

14

16

12

5

●

●

●

●

●

●

●

●
●

●

●

●

●

System-Wide Court Order Coverage
Alaska
Arizona
●
Arkansas
California
●
Colorado
Connecticut
Delaware
District of Columbia
●
Florida
●
Georgia
Illinois
●
Indiana
Kansas
Louisiana
●
Minnesota
Mississippi
Montana
New Hampshire
New Jersey
●
New Mexico
New York
●
North Carolina
Ohio
Oregon
Rhode Island
South Carolina
South Dakota
Tennessee
Texas
Utah
West Virginia

●
●

●
●

●

●

●

●

●

●

●

●

●

●

●

●
●

●

●

●
●

●
●

●

●

●

●

●

●

●

●
●

●
●

●

●
●
●
●
●
●

●
●
●
●
●
●

●
●

See supra note 41.

●
●

●
●
●
●
●

* States in which the proportion of the states’ non-private, non-community corrections facilities
reporting court orders, or the proportion of incarcerated population in those facilities, is greater
than 60%.

43

●
●

●
●
●
●

●
●
●

●

●

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 18 of 23

The point is not that courts are no longer part of the prison and jail oversight ecosystem.
In California (of all states) the contrary is obvious—numerous injunctive cases have transformed
California’s criminal justice system, 44 and more changes are underway. 45 But the PLRA has
made such cases far more rare.
Conclusion
In my view, court cases and court-enforceable regulation have since the 1970s been
useful correctives to dysfunctions and abuses that frequently occur in our low-visibility jails and
prisons. But the practice of prisoner litigation is susceptible to criticism, from the left, that
prisoner access to courts offers the appearance but not the reality of justice, 46 and that court
orders have both “contributed to mass incarceration,” by promoting the building of new prisons
to reduce overcrowding, 47 and limited prisoner freedom by enhancing prison bureaucracy. 48
Simultaneously, the critics from the right who got the PLRA passed suggested that prisoner cases
are usually frivolous and prison and jail decrees frequently overreaching. 49 This debate is far
beyond the scope of this Article—but perhaps further research will be spurred by publication of
these statistics, which demonstrate the kind of variance, over time and location, that researchers
might use to shed additional light on how prisoner litigation actually functions. Whichever view
is correct, the statistics set out below pose an enormous challenge to us as a polity. Litigation has
receded as an oversight method in American corrections. It is vital that something take its place.

44

See, e.g., Brown v. Plata, 131 S.Ct. 1910 (2011); Margo Schlanger, Plata v. Brown and Realignment: Jails,
Prisons, Courts, and Politics, 48 HARV. C.R.-C.L. L. REV. 165 (2013).
45

For a description of the Plata litigation’s recent progress, see Civil Rights Litigation Clearinghouse, Plata v.
Brown, 3:01-cv-01351-TEH (N.D. Cal.), http://www.clearinghouse.net/detail.php?id=589. For descriptions of other
ongoing litigated interventions into California’s criminal justice system, see, e.g., Civil Rights Litigation
Clearinghouse, Ashker v. Brown, 4:09-cv-05796-CW (N.D. Cal.),
http://www.clearinghouse.net/detail.php?id=12103; Civil Rights Litigation Clearinghouse, Gray v. County of
Riverside, 5:13-cv-00444 (C.D. Cal.), http://www.clearinghouse.net/detail.php?id=12729.
46

Cf., e.g., DUNCAN KENNEDY, A CRITIQUE OF ADJUDICATION (FIN DE SIÈCLE) (1997) (presenting and
analyzing this critique more broadly).
47

Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions Litigation, 44 LAW & SOC’Y
REV. 731, 760 (2010).
48

Malcolm M. Feeley & Van Swearingen, The Prison Conditions Cases and the Bureaucratization of
American Corrections: Influences, Impacts and Implications, 24 PACE L. REV. 433, 466–75 (2004).
49

See, e.g., Dennis C. Vacco, Frankie Sue del Papa, Pamela Fanning Carter & Christine O. Gregoire, Letter to
the Editor, Free the Courts from Frivolous Prisoner Suits, N.Y. TIMES, Mar. 3, 1995, at A26 (letter from Attorneys
General of New York, Nevada, Indiana, and Washington); SANDLER & SCHOENBROD, supra note 16.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 19 of 23

Technical Appendix
I have posted a compiled file containing state-by-state-by-year data:
• Jail population
• State prison population
• Federal prison population
• Federal court prisoner filings (by type of federal/non-federal defendant)
This full panel dataset is available at {URL TK}, and was used to produce Tables 1-2, and
Figures A-E. This Technical Appendix includes more information about the sources that underlie
that dataset, and also the data used for the remaining tables and figures.
Both federal and state prison populations are year-end counts, and are available for all
years for all states. Jail population is entirely unavailable for 1971-1977 and 1979, and only
national data are available for 1980-1982, 1984-1987, 1991-1992, 1994-1999, and 2012. Where
available, the figure chosen is the average daily population (because that is the most consistently
available data for state-by-state data). But for a few years when average daily population is not
available, the mid-year count is used instead. Details are included in the data file itself.
A. Federal court filings, outcomes, and other characteristics (Tables 1-6, Figures A-E)
Case filing and outcome figures in Tables 1-5 are derived from data by the
Administrative Office of the U.S. Courts (the AO) and cleaned up by the Federal Judicial Center,
the research arm of the federal court system. These data include each and every case
“terminated” (that is, ended, at least provisionally) by the federal district courts since 1970. The
Federal Judicial Center also publishes periodic reports on the data. My figures are not from these
written reports, but are instead based on my compilation and manipulation of the raw data to
eliminate duplicates, remands, etc. The Federal Judicial Center lodges this database for public
access with the Inter-university Consortium for Political and Social Research, which maintains it
at http://www.icpsr.umich.edu. I used the following datasets, pulling the “civil terminations” data
from each. For more detail and replication code see {URL TK}. Unfortunately I am unable to
post actual data, because the Bureau of Justice Statistics has instructed the ICPSR that the data
be available only for restricted use. By “prisoner civil rights” I mean cases with a “nature of suit”
code equal to either 550 (prisoner civil rights) or 555 (prison conditions). I have not been able to
ascertain any clear distinction between these two codes. A consolidated codebook for the
resulting consolidated database is posted at {URL TK}.
•
•
•
•

FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 1970–
2000, ICPSR STUDY NO. 8429 (last updated Apr. 25, 2002).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2001,
ICPSR STUDY NO. 3415 (last updated June 19, 2002).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2002,
ICPSR STUDY NO. 4059 (last updated Oct. 8, 2004).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2003,
ICPSR STUDY NO. 4026 (last updated June 17, 2004).

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 20 of 23

•
•
•
•
•
•
•
•
•
•

FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2004,
ICPSR STUDY NO. 4348 (last updated Nov. 4, 2005).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2005,
ICPSR STUDY NO. 4382 (last updated Mar. 17, 2006).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2006,
ICPSR STUDY NO. 4685 (last updated Mar. 15, 2007).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATABASE, 2007,
ICPSR STUDY NO. 22300 (last updated June 18, 2008).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2008,
ICPSR STUDY NO. 25002 (last updated June 29, 2009).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2009,
ICPSR STUDY NO. 29661 (last updated Nov. 26, 2012).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2010,
ICPSR Study No. 30401 (last updated Nov. 26, 2012).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2011,
ICPSR STUDY NO. 33622 (last updated Jan. 8, 2013).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE, 2012,
ICPSR STUDY NO. 34881 (last updated Mar. 18, 2014).
FEDERAL JUDICIAL CENTER, FEDERAL COURT CASES: INTEGRATED DATA BASE
APPELLATE AND CIVIL PENDING DATA, 2012, ICPSR 29281 (last updated Mar. 19, 2014)
(I used these data for pending civil cases).

B. Case Outcomes and Damages (Table 6)
Table 6 began using information in the AO data described above, in the terminations data for
Fiscal Year 2012. I made two lists of prisoner civil rights cases in that dataset. For the first
column in the table, I took the thirty-six cases in which the disposition code indicated a trial
judgment in plaintiff’s favor (disp = 7, 8, or 9, and judgefor = 1 or 3). The second column
includes other, non-trial, cases in which judgment was listed as in plaintiff’s favor (judgefor = 1
or 3). For each case on either list, I examined the docket, available via the federal court’s Public
Access to Court Electronic Records system, and relevant court documents to determine both
whether the AO-coded outcome was correct and the actual damages awarded, if any. I was able
to find all but one of the cases. Table 6 includes only cases in which the outcome was in fact a
litigated plaintiffs’ judgment, omitting many cases in which defendants won or the outcome was
a settlement. I list the actual damages, which frequently differ from the AO-coded damages.
C. State Prison Population (Tables 1 & 2, Figures A-E)
1970: Prisoners in State and Federal Institutions: 1968–1970, NAT’L PRISONER STATISTICS
BULL. (U.S. Dep’t of Justice, D.C.) Apr. 1972, at 22.
1971 to 1974: Prisoners in State and Federal Institutions on December 31, 1974, NAT’L
PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) June 1976, at 14.
1975: Prisoners in State and Federal Institutions on December 31, 1975, NAT’L PRISONER
STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) Feb. 1977, at 36 app. 2.
1976 & 1977: Prisoners in State and Federal Institutions on December 31, 1977, NAT’L
PRISONER STATISTICS BULL. (U.S. Dep’t of Justice, D.C.) Feb. 1979, at 10.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 21 of 23

1978 to 2012: U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS, Corrections Statistical
Analysis Tool (CSAT)—Prisoners, http://www.bjs.gov/index.cfm?ty=nps (follow “Quick
Tables” hyperlink; then follow “Inmates in custody of state or federal correctional
facilities, excluding private prison facilities, December 31, 1978-2012,” available at
http://www.bjs.gov/nps/resources/documents/QT_custnopriv_tot.xlsx, and “Inmates in
custody of state or federal correctional facilities, including private prison facilities,
December 31, 1999-2012,” available at
http://www.bjs.gov/nps/resources/documents/QT_custwpriv_tot.xlsx.
D. Federal Prison Population (Tables 1 & 2, Figures A-E)
National population only (Tables 1 & 2, Figures A-E)
For national federal prison population, the sources are the same as for state prison population,
part C, supra.
State-by-state population (Table 2, Figures C-E)
Federal prison state-by-state population is not average daily population; the data are for prisoner
counts, usually for the end of September. Full details available with the dataset itself.
1970-1993: U.S. Dep’t of Justice, Federal Bureau of Prisons, Statistical Report (annual):
Table A-2 (1970-1983)
Table 10 (1987)
Table 12 (1988-1989)
Table A13 (1990-1993)
1994-2012: BOP Inmate Population by Institution (includes privately managed institutions, but
not community corrections). Federal Bureau of Prisons spreadsheet provided June 13,
2014, by Jennifer Batchelder, Supervisory Research Analyst, Office of Research and
Evaluation, Federal Bureau of Prisons, on file with author.
E. Jail Population (Tables 1- 2, Figures A-E)
Note: No data available for 1971-1977 and 1979. I assumed a jail population of 160,000 for 1971
to 1977, based on the figures in 1970 and 1978. I assumed a jail population of 170,000 in 1979,
based on the figures in 1978.
National population only
1980-2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES (2002), previously available at
http://www.ojp.usdoj.gov/bjs/glance/sheets/corr2.wk1, on file with author (June 30 count
for jails, Dec. 31 count for prisons, and Jan. 1 count for paroles).
1980-1994: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1994, at 5 (June 1996, NCJ 160091), available at
http://www.bjs.gov/content/pub/pdf/cpius94a.pdf (see also
http://www.bjs.gov/content/pub/sheets/cpi94a.zip) (June 30 count).
1990-1996: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL
POPULATIONS IN THE UNITED STATES, 1996, at 20 (April 1999, NCJ 170013), available at

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 22 of 23

http://www.bjs.gov/content/pub/pdf/cpius96.pdf (June 30 count for all, and average daily
population 1990-1993).
1997-1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, PRISON AND JAIL INMATES
AT MIDYEAR 2000, at 6, available at http://www.bjs.gov/content/pub/pdf/pjim00.pdf (June
30 count).
2000-2013: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JAIL INMATES AT MIDYEAR
2013—STATISTICAL TABLES at tbl. 1 (May 2014, NCJ 245350), available at
http://www.bjs.gov/content/pub/pdf/jim13st.pdf (June 30 count and average daily
population).
State-by-state population
1970: Mid-year jail population. LAW ENFORCEMENT ASSISTANCE ADMIN., U.S. DEP’T OF
JUSTICE, NATIONAL JAIL CENSUS 1970, at 10 tbl.2 (1971) (March count).
1978, 1983, 1988, and 1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, JAIL
INMATES, BY SEX, HELD IN LOCAL JAILS (1997), previously available at
http://www.ojp.usdoj.gov/bjs/data/corpop09.wk1, on file with author (June 30 count). See
also Jail Censuses for those years (June 30 count and average daily population); F, infra;
BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, THE 1983 JAIL CENSUS, at 2
(November 1984, NCJ 95536).
1983: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN
THE UNITED STATES, 1985, at 5 (Dec. 1987, NCJ-103957), available at
http://www.bjs.gov/content/pub/pdf/cpus85.pdf (June 30 count).
1989: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN
THE UNITED STATES, 1989, at 5, 8 (October 1991, NCJ-130445), available at
http://www.bjs.gov/content/pub/pdf/cpus89.pdf (June 30 count).
1990: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN
THE UNITED STATES, 1990, at 5 (July 1992, NCJ-134946), available at
http://www.bjs.gov/content/pub/pdf/cpus90.pdf (June 29 count).
1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CORRECTIONAL POPULATIONS IN
THE UNITED STATES, 1993, at 7 (October 1995, NCJ-156241), available at
http://www.bjs.gov/content/pub/pdf/cpop93bk.pdf (Dec. 31 count).
1994 to 1999: Because state-by-state jail population is not available from 1994 to 1999, jail
population for those years is calculated using a linear interpolation between the 1993 and
2000 figures for each state.
2000-2011: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, Mortality in Local Jails and
State Prisons, 2000-2011 – Statistical Tables at 17 (Aug. 2013, NCJ 242186), available at
http://www.bjs.gov/content/pub/pdf/mljsp0011.pdf and downloadable at
http://www.bjs.gov/content/pub/sheets/mljsp0011.zip) (average daily population). Note:
the figures for Tennessee and Oklahoma are adjusted in 2010 and 2011, because Davidson
County and Oklahoma City were omitted from published data in those years. Thanks to
Daniela Golinelli, Chief, Corrections Unit, Bureau of Justice Statistics, for providing
appropriate corrections.

Schlanger, Trends in Prisoner Litigation, DRAFT October 2, 2014, page 23 of 23

F. Prison Censuses (Table 7 & 8)
1984: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE ADULT
CORRECTIONAL FACILITIES, 1984, ICPSR Study No. 8444 (last updated Apr. 22, 1997). See also
http://www.bjs.gov/content/pub/pdf/csacf84.pdf.
1990: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 1990, ICPSR Study No. 9908 (last updated Dec. 21, 2001).
See also http://www.bjs.gov/content/pub/pdf/csfcf90.pdf.
1995: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 1995, ICPSR Study No. 6953 (last updated Apr. 20, 1998).
See also http://www.bjs.gov/content/pub/pdf/Csfcf95.pdf.
2000: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 2000, ICPSR STUDY NO. 4021 (last updated July 9, 2004).
See also http://www.bjs.gov/content/pub/pdf/csfcf00.pdf.
2005: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF STATE AND FEDERAL
ADULT CORRECTIONAL FACILITIES, 2005, ICPSR STUDY NO. 24642 (last updated Oct. 5, 2010).
See also http://www.bjs.gov/content/pub/pdf/csfcf05.pdf.
G. Jail Censuses (Tables 7 & 8)
1983: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1983,
ICPSR Study No. 8203 (last updated Feb. 13, 1997). See also
http://www.bjs.gov/content/pub/pdf/clj83-vol1.pdf,
http://www.bjs.gov/content/pub/pdf/clj83-vol2.pdf,
http://www.bjs.gov/content/pub/pdf/clj83-vol3.pdf,
http://www.bjs.gov/content/pub/pdf/clj83-vol4.pdf,
http://www.bjs.gov/content/pub/pdf/clj83-vol5.pdf.
1988: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1988,
ICPSR Study No. 9256 (last updated June 24, 1997). See also
http://www.bjs.gov/content/pub/pdf/clj88-vol1.pdf,
http://www.bjs.gov/content/pub/pdf/clj88.pdf.
1993: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1993,
ICPSR Study No. 6648 (last updated July 13, 1996).
1999: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, NATIONAL JAIL CENSUS, 1999,
ICPSR Study No. 3318 (last updated Aug. 16, 2002). See also
http://www.bjs.gov/content/pub/pdf/cj99.pdf.
2006: BUREAU OF JUSTICE STATISTICS, U.S. DEP’T OF JUSTICE, CENSUS OF JAIL FACILITIES, 2006
ICPSR Study No. 26602 (last updated Jan. 6, 2010). See also
http://www.bjs.gov/content/pub/pdf/cjf06.pdf.

 

 

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