Tasha Hill's comment, Inmates’ Need for Federally Funded Lawyers: How the Prison Litigation Reform Act, Casey, and Iqbal Combine With Implicit Bias to Eviscerate Inmate Civil Rights, appears in this issue of the UCLA Law Review and can be read and downloaded in full here. You can find Hill's previous work on sexual abuse in California prisons here. In this most recent paper, Hill delves into a sorely underdiscussed aspect of indigent representation. Hill's writing is approachable and illuminating, and should be of interest to readers in all fields -- and particularly those working in the fields of criminal law and prison law. Here is the 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.Hill suggests that the the Ninth Circuit could fund a "circuit-wide" Prison Lawyers program that could take up the task of representing inmates who file lawsuits over poor conditions and mistreatment. Noting that most inmate constitutional claims are filed in federal courts, Hill argues that as few as 68 lawyers could take on this role based on the current number of federal cases inmates file. While this program would need to be funded, Hill argues that the program could save money in the long term by creating stronger incentives for prisons to comply with constitutional requirements.
There are indeed some unanswered questions, and Hill recognizes this. It is unclear what the Prison Lawyers program would do to the number of lawsuits filed. Prisoners who may have formerly refrained from filing lawsuits may think that their prospects of success are improved if they are represented by an attorney. This may lead to a heavier caseload for prison lawyers than current numbers suggest.
At the same time, the costs such a program could save shouldn't be dismissed. Beyond long-term savings that may result from changing prison conditions, the Prison Lawyers program could be a filtering device that could weed out frivolous and malicious claims before they reach the courts. Attorneys could inform their clients why a claim lacks merit or redirect their clients' efforts toward proper administrative channels. This could lead to a twofold reduction in workloads: it would lessen the burden on the courts that would have handled and rejected these claims, and of government attorneys who would have responded to these claims.
Hill sheds light on an under-scholared area of law and makes concrete proposals. People working in the field of prison law should take note of this comment.