By: Alexander Afnán*
Abstract
Almost thirty years ago, Congress enacted the Prison Litigation Reform Act (PLRA) to curb a perceived surge of frivolous lawsuits filed by incarcerated individuals. The PLRA imposed significant barriers on incarcerated litigants, among the most critical and least studied of which was the mandatory filing fee. While non-incarcerated individuals can have the court filing fee waived or reduced, Congress explicitly adopted the filing fee, which is now $350 in district court and $605 for an appeal, as a carceral penalty to disincentivize civil rights litigation in prisons. Congress asserted that this penalty would only reduce frivolous litigation, not meritorious claims. Yet, over nearly three decades, the jurisprudence around the carceral litigation penalty has evolved in ways that increasingly hinder indigent incarcerated individuals from making important civil rights claims in ways far beyond what even Congress likely imagined.
This Article highlights the financial reality of the prison environment—a deprived ecosystem where subtle changes can have outsized and unanticipated consequences. For example, most incarcerated individuals earn a wage between $0.13 and $0.52 per hour (if they are paid at all), are taxed on much of their wages for “room and board,” and have to pay for many of the basic necessities at the prison commissary. As a result, penalizing indigent incarcerated individuals for initiating a lawsuit forces them to make a unique economic sacrifice—a sacrifice worth thousands of hours of prison labor and which prohibits many people from bringing important civil rights lawsuits, leaves them and their families less able to afford their basic necessities, and removes a critical accountability mechanism for prison conditions.
By analyzing the fundamental errors leading to the adoption and validation of the PLRA’s mandatory filing fee requirement, and by characterizing it as a carceral penalty prohibiting access to important civil rights litigation in prisons, this Article seeks to paint the broader picture of how a facially neutral prison law can have devastating consequences when imposed on an economic ecosystem designed to punish people beyond their official sentence.
* Teaching fellow and supervising attorney at the Georgetown University Law Center Civil Rights Clinic. Sincere thanks to Nicole Rheault, Aderson Francois, Zina Makar, Daniel Harawa, Deborah Epstein, and Pegah Nabili for their valuable comments on prior drafts of this article. Thanks also to Sela Carrington for her research assistance. And thanks to Alexis S. Bloodsworth, Kenneth M. Bernstein, Luz M. Payán, and the other members of the Penn State Law Review for their careful editing of this article. All errors and omissions are mine alone.