Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights

Abstract

The United States incarcerates a larger percentage of our population than any other country. Minority populations make up a substantially disproportionate percentage of those incarcerated. For a variety of reasons, violence perpetrated against incarcerated persons, including sexual assault, is endemic and inmates have very limited opportunities to protect themselves. The state has an obligation to protect these people whom it has chosen to strip of the ability to protect themselves and to provide for inmates’ other "basic human needs" such as adequate nutrition and housing.

The only legal avenue of redress available for inmates to enforce their constitutional rights lies with the courts. But in recent decades, inmates’ access to the courts has been undermined by Congressional acts (principally the Prison Litigation Reform Act) and Supreme Court decisions (such as Casey and Iqbal), leading to a sharp reduction in the success rate of meritorious inmate Constitutional claims. Additionally, pro se inmates, who file the vast majority of claims, have substantially lower success rates in civil rights cases than do represented inmates.

I therefore propose that a new program called Prison Lawyers be designed and implemented. Prison Lawyers would work for the state, much like public defenders do, and would guide inmates through increasingly complicated administrative grievance processes to achieve exhaustion. Should grievances not be successfully settled, Prison Lawyers would then help inmates file civil rights claims in federal courts. This system would potentially save the state money by reducing the courts’ burden in processing pro se inmate civil rights claims, and would ensure the enforcement of constitutional carceral conditions.

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By uclalaw