11 U. Pa. J. Const. L. 139 (2008-2009)
Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act

handle is hein.journals/upjcl11 and id is 141 raw text is: 






              PRESERVING THE RuLE OF LAW IN AMERICA'S
           JAILS AND PRISONS: THE CASE FOR AMENDING THE
                    PRISON LITIGATION REFORM ACT*



                              Margo Schlangr*
                              Giovanna Shay**

    Prisons and jails pose a significant challenge to the rule of law
within American boundaries. As a nation, we are committed to con-
stitutional regulation of governmental treatment of even those who
have broken society's rules. And accordingly, most of our prisons
and jails are run by committed professionals who care about prisoner
welfare and constitutional compliance. At the same time, for pris-
ons-closed institutions holding an ever-growing disempowered
population'-most of the methods by which we, as a polity, foster
government accountability and equality among citizens are unavail-
able or at least not currently practiced. In the absence of other levers


*    Copyright © 2008 Margo Schlanger & Giovanna Shay. Permission is hereby granted to
     distribute this Article for free or at cost to students enrolled in a class, or to prisoners. It
     is also available at http://schlanger.wustl.edu (follow link for publications).
         This Article adapts Professor Schlanger's testimony before the House Judiciary Sub-
     committee on Crime, Terrorism, and Homeland Security in November of 2007 and an
     American Constitution Society Issue Brief that Professors Schlanger and Shay co-
     authored in March of 2007. See Review of the Prison Litigation Reform Act: A Decade of Reform
     or an Increase in Prison and Abuses?: Hearing on H.L 1889 Before the Subcomm. on Crime, Ter-
     rorism, and Homeland Sec. of the H. Comm. on theJudiciary, 110th Cong. (2007) (statement of
     Margo Schlanger, Professor of Law, Washington University in St. Louis, on behalf of the
     American Bar Association), available at http://judiciary.house.gov/hearings/hear_
     110807.htnl; MARGO SCHLANGER & GIOVANNA SHAY, AM. CONSTITUTION SOC'Y FOR LAW
     AND POLICY, PRESERVING THE RULE OF LAW IN AMERICA'S PRISONS: THE CASE FOR
     AMENDING THE PRISON LITIGATION REFORM ACT (2007), available at http://www.acslaw.
     org/node/4587. The authors thankJohn Boston for his comments, and dedicate this Ar-
     ticle to the memory of Rachel King, whose work on behalf of prisoners was untimely
     ended in 2008.
**   Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University
     of Michigan Law School (Fall 2008); Visiting Professor of Law, UCLA (Spring 2009).
*    Assistant Professor of Law, Western New England College School of Law.
I    Bureau of Justice Statistics, U.S. Dep't of Justice, Key Facts at a Glance: Correctional
     Populations, http://www.ojp.usdoj.gov/bjs/glance/tables/corr2tab.htm (last visited Nov.
     5, 2008) (reporting 1.6 million inmates in American jails and prisons in 1995; by 2006,
     that number had increased by 42%, to 2.3 million). For a recent assessment, see PEW
     CTR. ON THE STATES, ONE IN 100: BEHIND BARS IN AMERICA 2008 (2008), available at
     http://www.pewcenteronthestates.org/uploadedFiles/One%20in%20100(3).pdf.

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