Nij and Nat Center for State Cts Report on Pris Lit and Death Pen Laws, 2004

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Nij and Nat Center for State Cts Report on Pris Lit and Death Pen Laws, 2004

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A Tale of Two Laws Revisited:
Investigating the Impact of the Prisoner Litigation Reform Act and
the Antiterrorism and Effective Death Penalty

By
Fred L. Cheesman II, PhD, Project Co-Director
Brian J. Ostrom, PhD
National Center for State Courts
Roger A. Hanson, PhD, Project-Co-Director
Hanson and Associates, http://www.factory7.com/~rah
Williamsburg, VA

This document was developed by The National Center for State Courts under a grant from the
National Institute of Justice (Award No. 2001-IJ-CX-0013.) The points of view expressed do not
necessarily represent the official position or policies of The National Center for State Courts
or the U.S. Department of Justice.

Advisory Group

The Honorable Charles Coody
Magistrate Judge, U.S. District Court for the
Middle District of Alabama

Jill Fluck
Assistant Counsel, Section Supervisor for
Legal Services, PA Department of Corrections

Stephanie Lane -Weber
Counsel, Correctional Litigation Division
MD Office of Attorney General

Honorable Carlos F. Lucero
Judge, U.S. Court of Appeals, 10th Circuit

A Tale of Two Laws Revisited:
Investigating the Impact of the Prisoner Litigation Reform Act and the
Anti-terrorism and Effective Death Penalty Act

Acknowledgments
This project benefited immeasurably from the advice and guidance of many individuals.
Our first thanks go to our advisory group. Their advice and suggestions were critical to outlining
the policy issues to be addressed in the study, and in developing a methodology appropriate for
the problem at hand.

We also wish to acknowledge the help of a number of individuals that met with the research
team early in the project’s life to help formulate our methodology. These include Joe Cecil and
his colleagues at the Federal Judicial Center, John Scalia (Bureau of Justice Statistics), Karen
Cordry (National Association of Attorneys General), Todd Marti (Assistant Ohio Attorney
General), Martin Hotvet (Assistant New York Solicitor General) and Nolan Jones (National
Governors Association).

We also wish to acknowledge the valuable contributions of our National Center of State Courts
colleagues. Neil LaFountain assisted with data collection and data base issues. Toni Knorr
assisted with project administration and manuscript preparation.

The critical support of the National Institute of Justice Institute (NIJ) must be recognized. In
particular, the encouragement and monitoring provided by Ron Everett and Chris Innes saw the
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project through to a happy conclusion. We also acknowledge the valuable guidance given by
Director Sara Hart and Deputy Director Glenn Schmidt in formulating the project methodology.
The National Center for State Cour ts thanks NIJ for recognizing the need to document and to
evaluate the changes in prisoner litigation rates that have occurred since the enactment of the
Prisoner Litigation Reform Act (PLRA) of 1996 and the Antiterrorism and Effective Death
Penalty Act (AEDPA) of 1996.

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Table of Contents
Acknowledgements .........................................................................................................................E-1
Executive Summary........................................................................................................................E-5
Overview of PLRA .............................................................................................................E-6
Overview of AEDPA..........................................................................................................E-7
Findings...............................................................................................................................E-7
Part 1: The Effect of PLRA on the Filing Rate..................................................................E-8
Part II: The Effect of AEDPA on the Filing Rate ..............................................................E-9
Part III: Conclusions ......................................................................................................... E11
Chapter 1: Introduction......................................................................................................................1
1.1. Evaluation Design and Organization of the Report .........................................................2
1.2. Benefits of the Evaluation................................................................................................4
Chapter 2: Congress, Courts and Corrections – An Empirical Perspective.......................................5
2.1. Introduction......................................................................................................................5
2.2. History, Literature, and Practice ......................................................................................8
2.2.1. A Short History....................................................................................................8
Figure 2-1: Number of Section 1983 Lawsuits, 1972-2000 ................................................11
2.2.2. PLRA Provisions ...............................................................................................11
2.2.3. Literature ............................................................................................................13
2.2.4. Practice...............................................................................................................15
Table 2-1: Manner of Disposition for Section 1983 Cases ..................................................16
Table 2-2: Reasons for court dismissals of Section 1983 lawsuits ......................................18
2.3. The Results.....................................................................................................................21
2.3.1. National Trends..................................................................................................21
Figure 2.2: Average number of Sections 1983 lawsuits ......................................................23
2.3.2. Circuit Trends ....................................................................................................24
Figure 2.3. First Circuit.........................................................................................................27
Figure 2.4. Second Circuit ....................................................................................................27
Figure 2-5. Third Circuit ........................................................................................................27
Figure 2-6. Fourth Circuit ......................................................................................................28
Figure 2-7. Fifth Circuit .........................................................................................................28
Figure 2-8. Sixth Circuit ........................................................................................................28
Figure 2-9. Seventh Circuit ....................................................................................................29
Figure 2-10. Eighth Circuit ....................................................................................................29
Figure 2-11. Ninth Circuit......................................................................................................29
Figure 2-12. Tenth Circuit .....................................................................................................30
Figure 2-13. Eleventh Circuit .................................................................................................30
Table 2-3: Section 1983 Law Suits per 10,000 Prisoners .....................................................32
2.3.3. Manner of Disposition .....................................................................................33
Figure 2-14. Percentage of Section 1983 Dismissed .............................................................35
Figure 2-15. Percentage of Section 1983 Cases Disposed.....................................................35
Figure 2-16. Percentage of Section 1983 Cases Disposed by Jury........................................36
2.4. Conclusion ......................................................................................................................36
Chapter 3: The AEDPA Meets Habeas Corpus ................................................................................39

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3.1. Introduction.....................................................................................................................39
3.2. Background .....................................................................................................................42
3.2.1. National Historical Trends...............................................................................42
Figure 3-1. Habeas Corpus Petitions Filed ............................................................................43
3.2.2. Competing Legal Perspective ..........................................................................46
3.2.3. AEDPA – An Overview of Intended and Actual Results ................................48
Figure 3-2: National Habeas Corpus Monthly Filing Rate ...................................................49
Figure 3-3: Number of Habeas Corpus Petitions Filed Monthly ..........................................52
3.2.4. Court Administration Studies ..........................................................................54
Figure 3-4: Habeas Corpus Petitions and State Prisoner Population....................................56
Figure 3-5: Percentage of State Prison Population by Offense Type ...................................58
Table 3-1: Reasons for Dismissal of Habeas Corpus Issues .................................................59
3.3. Data and Methodology....................................................................................................61
3.3.1. Data ..................................................................................................................61
3.3.2. Methodology ....................................................................................................61
3.4. Results and Discussion ...................................................................................................64
Figure 3-6: Habeas Corpus Petitions Filed Monthly, 1st Circuit ..........................................66
Figure 3-7: Habeas Corpus Petitions Filed Monthly, 2nd Circuit..........................................67
Figure 3-8: Habeas Corpus Petitions Filed Monthly, 3rd Circuit ..........................................67
Figure 3-9: Habeas Corpus Petitions Filed Monthly, 4th Circuit ..........................................68
Figure 3-10: Habeas Corpus Petitions Filed Monthly, 5th Circuit ........................................68
Figure 3-11: Habeas Corpus Petitions Filed Monthly, 6th Circuit ........................................69
Figure 3-12: Habeas Corpus Petitions Filed Monthly, 7th Circuit ........................................69
Figure 3-13: Habeas Corpus Petitions Filed Monthly, 8th Circuit ........................................70
Figure 3-14: Habeas Corpus Petitions Filed Monthly, 9th Circuit ........................................70
Figure 3-15: Habeas Corpus Petitions Filed Monthly, 10th Circuit ......................................71
Figure 3-16: Habeas Corpus Petitions Filed Monthly, 11th Circuit ......................................71
Table 3-2: Which Alternative Statistical Model Best Fits the Data......................................72
Table 3-3: District Courts – Circuit s Experienced Greatest Change ....................................73
Table 3-4: District Courts – Circuits Experienced Greatest Pulse Increase .........................74
3.5. Conclusion, Policy Implications, and Future Inquiry.....................................................76
3.5.1. Summary..........................................................................................................76
3.5.2. Policy Implications ..........................................................................................77
3.5.3. Future Inquiry ..................................................................................................79
Chapter 4: Conclusion.......................................................................................................................81

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Executive Summary
Central Findings

The United States Congress enacted two major pieces of legislation in 1996 to affect the
volume and nature of prisoner litigation in the federal courts. State prisoners are able to file
habeas corpus petitions challenging the validity of their convictions and to file lawsuits
challenging the conditions of their confinement. Prisoners’ cases are a sizable proportion of the
caseload, accounting for more than one of every five civil cases in the federal trial court system. 1
The Congress’s recent statutory policies called the Antiterrorism and Effective Death
Policy Act (AEDPA) and the Prisoner Litigation Reform Act (PLRA) were the first laws enacted
since 1980 that focused on state prisoner litigation. In 1980, the Congress passed the Civil
Rights of Institutionalized Persons Act (CRIPA). Under CRIPA, state correctional agencies
could voluntarily seek certification of their grievance procedures from the Attorney General and
federal courts. If certified, the procedures then would have to be exhausted prior to the filing of
lawsuits against state correctional officers. CRIPA never really took hold because few states
sought certification and with the exception of primarily the U.S. Court of Appeals for the Ninth
Circuit, few federal judges showed an inclination to certify state mechanisms.
The Congress’s actions in 1996 also followed several important U.S. Supreme Court
decisions concerning both habeas corpus petitions and challenges to prison conditions. For the
past twenty years, the Court had rendered a series of decisions that narrowed the scope of
conditions under which prisoners could litigate. Yet, despite those efforts, the number of
prisoners’ cases increased consistently over time.

Both types of cases are classified as civil matters by the Administrative Office of the U.S. Courts (AO) even
though they are filed by prisoners and are challenges to key aspects of the state criminal justice system.

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Because evidence gathered for this paper indicates that the Prisoner Litigation Reform
Act achieved its intended effects, and the Antiterrorism and Effective Death Penalty Act did not
achieve parallel results, the tale of the two Acts is interesting. What led to the divergent effects
of the two Acts?
Overview of PLRA
The PLRA had two major features. The first focused on governing the judicial role following a
court determination of unconstitutional prison conditions such as overcrowding and inadequate
medical care. The second dealt with complaints brought by individual prisoners. This latter
component, designed to limit “frivolous” litigation, drove much of the congressional debate and
was clearly intended to reduce the number of prisoner lawsuits filed. Because a large proportion
of prisoner lawsuits were being dismissed, the presumption by many drafting the PLRA was that
most were frivolous and numerous examples were assembled in support of that viewpoint. As a
consequence, the PLRA provisions for dealing with frivolous litigation, primarily restrictions on
filing in forma pauperis for previous frivolousness and the assessment of filing fees, focused on
increasing the costs to prisoners of even proceeding to the filing stage. The goal was to purge
the frivolous cases before they ever entered the system.
There are three provisions of this statute especially relevant to understanding the
trends in Section 1983 filings. They are:
• Inmates must exhaust all available administrative remedies before filing the case, even if
a facility’s grievance procedures have not been certified by the U.S. Department of
Justice or a federal court.
•

Inmates filing lawsuits in forma pauperis are required to pay the appropriate filing fees
(and costs, where applicable) from their existing assets or any funds available to them
through their trust fund accounts within the correctional system.

•

Inmates are prohibited from filing lawsuits in forma pauperis (as an indigent without
liability for court fees and costs) if the inmates have filed three or more actions in federal
court that were dismissed as frivolous or malicious or for failing to state a claim on which
relief can be granted.

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The import of these requirements is that until and unless they are satisfied, federal trial
courts need not accept a prisoner’s Section 1983 case simply because a prisoner has filed a
complaint. The courts are not required to docket the complaint as a case, give it a case number
and place it in the queue for court action.
Overview of AEDPA
Key provisions of AEDPA are as follows:
•

Establishment of a statute of limitations whereby both federal and state inmates have one
year from the time their conviction becomes final (i.e., one year from the time their
conviction becomes final and/or sentence is exhausted) to file a habeas corpus petition in
federal court. In the case of prisoners under sentence of death, the petition must be filed
within 180 days.

•

The provision that a claim presented in a second or successive habeas corpus application
that was presented in a prior application shall be dismissed.

•

Federal courts are required to show deference to the determination of the state courts,
provided that these determinations are neither “contrary to” nor an “unreasonable
application of” clearly established federal law as determined by the Supreme Court.
Provisions of AEDPA are intended to limit the number of habeas corpus petitions filed.

For example, AEDPA might reduce the number of potential late filers because the one-year
filing deadline reduces the time between the exhaustion of state remedies and the filing of a
petition. Because no standard time frame existed before the AEDPA, some prisoners took years
after exhaustion before filing a petition. In addition, restrictions on successive petitions was
expected to encourage prisoners to consolidate their issues into a single petition thereby further
reducing the number of filings.
Findings
The findings of the evaluation are summarized in three parts:
•

Part I: The Effect of PLRA on the filing rate of Section 1983 Lawsuits examines
whether PLRA had its intended effect of reducing the number of Section 1983
lawsuits filed.
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•

Part II: The Effect of AEDPA on the filing rate of State Prisoner Habeas Corpus
Petitions examines whether AEDPA had its intended effect of reducing the
number of state prisoner habeas corpus petitions filed.

•

Part III: Conclusions presents five lessons to be learned from this dual set of
policy initiatives.

Part I: The Effect of PLRA on the Filing Rate of State Prisoner Lawsuits
Using the techniques of interrupted time series analysis, it was determined that PLRA
produced a statistically significant decrease in both the volume and trend of Section 1983
lawsuits per 10,000 state prisoners nationally and in every Circuit, except the 5th . The 5th Circuit
had displayed a decreasing trend prior to PLRA’s implementation that continued without change
after implementation. Although District Courts in all Circuits (except the 5th ) showed a
statistically significant drop in prisoner litigation following enactment of the PLRA, the extent of
the decline varied considerably. The percentage change in the average monthly filing rates
ranged from a decrease of 31 percent in the 9th Circuit to 74 percent in the 2nd Circuit.
However, the size of the decrease in the Circuits was shown to be not related to the size of the
filing rate before PLRA was adopted, although the rates varied extensively among the Circuits.
Apparently the PLRA is having a differential impact across the circuits and is operating in a
more subtle manner than would be expected based simply on the size of the pre-PLRA filing
rate.
If the PLRA is operating as envisioned by its authors, we have certain expectations about
the type of cases that will no longer be filed in federal courts or that will be summarily
dismissed. If the PLRA is serving to siphon off nonmeritorious cases, the n we expect that trials
will account for an increased proportion of resolutions post-PLRA. If some procedurally weak
cases are no longer filed, then the relative share of meritorious cases should rise and we should

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see an increase in the trial rate. The results show that jury trial rates have risen in every Circuit
(except the 6th, where there was little change), though the proportion of resolutions accounted
for by trials remains small and varies among the circuits. Proponents of the PLRA will likely see
these results as indicative of success. Fewer prisoner lawsuits are being filed, relatively more
cases (presumably procedurally weak) are being dismissed earlier in the process, and relatively
more cases are being resolved by jury trial.
Part II: The Effect of AEDPA on the Filing Rate of Federal Habeas Corpus Petitions
The current research has demonstrated three important relationships between AEDPA
and the filing of habeas corpus petitions. First, the results demonstrate that AEDPA did not
produce or contribute to an expected decrease in petitions. No set of U.S. District Courts in any
circuit demonstrates a decrease in filing rates after AEDPA.
Second, we find no support for the claim made by other observers that AEDPA actually
“caused” an increase in habeas corpus petition filing rate. We could not discern an increase in
filing rates coincident with the immediate implementation of AEDPA either nationally or in any
circuit. Further, an increasing trend in the rate of habeas corpus petitions several months after
implementation of the PLRA occurred in only three of the eleven circuits.
Third, reality fits two patterns. For District Courts in most Circuits, a one-time spike
occurs in filing, followed by a return to the filing rates that existed before AEDPA. And, in three
of the circuits (3rd, 4th , and 9th ) District Courts experienced not only a spike increase, but
witnessed a step- like increase to a higher plateau in filing rates.
From our perspective, these two patterns – called delayed step and pulse models –
generally corroborate the ideas and propositions in the court administration literature. An
increase in prison population in the first half of the 1990s, an increase in violent offenders

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throughout the 1990s, the opportunity for multiple petitions despite the tightening of restrictions
on successive petitions, all played a role in maintaining or increasing the habeas corpus filing
rates.

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Part III: Conclusions

The U.S. Congress took an extraordinary step in 1996 by enacting two policies to regulate the
use of the legal system by state prisoners. They were the Prisoner Litigation Reform Act
(PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
The PLRA dealt with lawsuits filed by state prisoners challenging the conditions of their
confinement, which are commonly called Section 1983 cases. The AEDPA focused on
applications for writs of habeas corpus filed by prisoners challenging the validity of their
convictions and sentences, which commonly are called habeas corpus petitions.
Because these two types of legal actions are cases filed in and resolved by federal courts,
the evolving doctrines governing prisoners’ legal actions traditionally have been developed by
federal judiciary led by the U.S. Supreme Court. Congressional involvement in this area of
public policy, which is a striking departure from the past, calls attention to these laws.
Additionally, the provisions of the legislation involves choices based on fundamental values,
such as the extent to which prisoners have constitutional rights while incarcerated, the amount of
time and resources that should be devoted to determining whether prisoners are correctly (or
wrongfully) convicted, and the degree to which federal courts should supervise state correctional
institutions and state courts. As a result, these two laws are part of an ongoing national debate on
important criminal justice issues and policy. Moreover, these two laws are important to
understand because of their consequences.
Both the proponents and the critics of these laws expected the number of cases brought
by prisoners in federal courts to decrease as a result of their provisions. Yet, whereas Section
1983 lawsuits decreased sharply in U.S. District Courts within the jurisdiction of every Circuit of
the U.S. Court of Appeals after the introduction of PLRA, no glimmer of a decrease in habeas

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corpus petitions occurred in District Courts within any Circuit’s jurisdiction after implementation
of AEDPA.
We conclude this report by offering some lessons to be learned from the consequences of
this dual set of policy initiatives. From our perspective, we believe that there are five lessons
that emerge from what happened to prisoner litigation after the introduction of PLRA and
AEDPA
The first lesson is that intrinsic difference between a lawsuit and an application for a writ
put Congress in a much better position to influence Section 1983 cases than habeas corpus
petitions. Every area of civil law, including prisoners’ rights, involves procedural requirements
that plaintiffs must meet to have their complaints accepted by courts (i.e., docketed, placed on
track or calendar and set for the first court event). As a result, Congress was able to introduce
new requirements via PLRA (e.g., filing fees, exhaustion of state remedies) that ultimately
proved effective. Complaints without payment of fees and exhaustion of state remedies were not
accepted. In fact, these requirements likely deterred some prisoners from filing complaints
because they knew they could not meet or were unwilling to satisfy those requirements.
No such filing requirements exist for habeas corpus petitions. Courts must accept
applications for writs of habeas corpus petitions and docket them. Then, courts can decide
whether to grant, deny or dismiss the petitions. However, Congress was in no position to
intervene in the courts’ decisions to accept habeas corpus petitions. Hence, the Congress faced a
more daunting challenge in producing a reduction in habeas corpus petitions than it experienced
in reducing Section 1983 cases.
A second lesson, which follows from the first one, is that the new exhaustion
requirements incorporated in the PLRA and the pre-existing exhaustion doctrine governing

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Federal habeas corpus are not equivalent. Exhaustion of state remedies for Section 1983
lawsuits and Federal habeas corpus petitions are similar in name only.
The essential difference in the meaning and application of the two exhaustion
requirements is that PLRA prohibited the acceptance of Section 1983 complaints by prisoners
and docketing them as court cases if administrative (correctional) grievance procedures had not
been exhausted. In contrast, prisoners could have their habeas corpus petitions accepted by
federal courts even if they had failed to exha ust state remedy (i.e. state appellate court review
and state habeas corpus or post conviction remedies) processes. Federal courts might quickly
dismiss petitions that had failed to exhaust state remedies, but there was nothing in AEDPA that
prohibited the acceptance of petitions that had not met the exhaustion requirement.
Consequently, the two sets of exhaustion requirements constituted two quite contrasting criteria.
This distinction between them contributed to the relative success of PLRA because its provisions
permitted federal courts to reject prisoner complaints which, in turn, reduced the number of
Section 1983 lawsuits. Hence, unless the exhaustion doctrine for habeas corpus is modified in
some way, Congress will have to find another way to see appreciable decreases in the number of
petitions.
A third lesson is that the nature of the prisoner population plays a role in inhibiting the
efforts to reduce the number of habeas corpus petitions, but plays no similar role in efforts to
reduce Section 1983 cases. Simply stated, the composition of the correctional population
independently affects the filing of habeas corpus petitions. Specifically, violent offenders with
lengthy sentences are more likely to file habeas petitions than nonviolent offenders who are
likely to be released before they exhaust state remedies and complete the federal court review
process. Consequently, as the prison population becomes increasingly dominated by offenders

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subject to long-term incarceration, the efforts to restrict habeas petitions are confronted with the
increasing tendency of the prison population to file petitions. Hence, unless the Congress takes
into account the varying probability of offenders to file habeas corpus petitions, and develops
measures to overcome the increasing percentage of prisoners who are likely to file petitions, the
effects of additional procedural requirements will not make a difference in filing rates.
A fourth lesson is that the success of PLRA and AEDPA cannot be judged by
examinatio n of only the number of prisoners’ cases that are filed. The disposition of the cases
also is essential to understand and to evaluate the legislation. For example, consider some of the
questions that need to be addressed about habeas corpus petitions and AEDPA. Has the number
and type of legal issues changed after the introduction of AEDPA? Did the AEDPA change the
time taken to resolve petitions? Is the percentage of outcomes favorable to prisoners higher,
lower, or the same after AEDPA? Are the grounds for dismissing petitions different or about the
same after AEDPA?
Without answers to these questions, the number of petitions before and after AEDPA is a
very blunt measure of the legislation’s performance. Moreover, this criterion fails to provide any
clues on the dynamics of the legal process. No information is gained on how and why prisoners
reacted to AEDPA. Hence, Congress should be prepared to focus on the manner and outcome of
case resolution as it considers future refinement in the provisions of AEDPA and PLRA.
A fifth lesson is that the U.S. Congress should be able to improve its policy initiatives in
the area of prisoner litigation in the future. The current research has clarified some basic issues,
and the terms of policy debates should have been advanced accordingly. We now know that it is
quite possible to influence Section 1983 cases through conscious policy choices. More
information is needed to know exactly how relative the importance of different legislative

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provisions play in shaping case filings. However, that connection is not unknowable. For this
reason, the existing legislation should be amenable to a more focused dialogue on how best to
refine existing provisions. On the other hand, the impact of policy choices on habeas corpus
petitions should be seen as a more complex matter than what the Congress previously might have
assumed. More basic research and thought are necessary to develop provisions that have a
reasonable chance of achieving the goal of a reduction in petitions. Hence, the Congress should
build on its past efforts and use the knowledge gained to craft more legislation that achieves its
intended objective without sacrificing the interests and rights of prisoners.

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Chapter 1: Introduction

The United States Congress enacted two major pieces of legislation in 1996 to affect
the volume and nature of prisoner litigation in the federal courts. State prisoners are able to file
habeas corpus petitions challenging the validity of their convictions and to file lawsuits
challenging the conditions of their confinement. Prisoners’ cases are a sizable proportion of the
caseload, accounting for more than one of every five civil cases in the federal trial court system.1
The Congress’s recent statutory policies called the Antiterrorism and Effective Death
Policy Act (AEDPA) and the Prisoner Litigation Reform Act (PLRA) were the first laws
enacted since 1980 that focused on state prisoner litigation. In 1980, the Congress passed the
Civil Rights of Institutionalized Persons Act (CRIPA). Under CRIPA, state correctional
agencies could voluntarily seek certification of their grievance procedures from the Attorney
General and federal courts. If certified, the procedures then would have to be exhausted prior
to the filing of lawsuits against state correctional officers. CRIPA never really took hold
because few states sought certification and with the exception of the U.S. Court of Appeals for
the Ninth Circuit, few federal judges showed an inclination to certify state mechanisms.
The Congress’s actions in 1996 also followed several important U.S. Supreme Court
decisions concerning both habeas corpus petitions and challenges to prison conditions. For the
past twenty years, the Court had rendered a series of decisions that narrowed the scope of

Both types of cases are classified as civil matters by the Administrative Office of the U.S. Courts (AO)
even though they are filed by prisoners and are challenges to key aspects of the state criminal justice
system.

conditions under which prisoners could litigate. Yet, despite those efforts, the number of
prisoners’ cases increased consistently over time.
Because evidence gathered for this paper indicates that the Prisoner Litigation Reform
Act achieved its intended effects, at least in the short run, and the Antiterrorism and Effective
Death Penalty Act did not achieve parallel results, the tale of the two Acts is interesting. What
led to the divergent effects of the two Acts?
The objectives of this report are threefold. First, we seek to understand the nature and
relative influence of the underlying causes of prisoner litigation. What are the forces driving
prisoner litigation filing rates? The second objective is to examine whether PLRA and AEDPA
had their intended effects of reducing the number of Section 1983 lawsuits and habeas corpus
petitions, respectively, at both the national and Circuit Court-levels. Are there differences
among the Circuits and, if so, what accounts for them? Were there unintended as well as
intended changes resulting from the two pieces of legislation? Third, the goal is to discuss the
implications of the results for regulating the volume of prisoner litigation and to discuss future
directions for research and policy.
1.1. Evaluation Design and Organization of the Report: The evaluation employs a
combination of descriptive and analytic techniques to evaluate. To accomplish the three objectives
of the research, the evaluation is divided into three distinct but interrelated parts.

Part I: Congress, Courts and Correction: An Empirical Perspective on the
Prisoner Litigation Reform Act
Chapter 2 focuses on the impact of the PLRA on the filing rate of Section 1983
lawsuits, nationally and for each Circuit, and on the manner of disposition of
such cases on a national-level.
2

Part II: Federal Habeas Corpus Petitons, Congress, and the Courts: Effects of
the Antiterrorism and Effective Death Penalty Act
Chapter 3 focuses on the impact of the AEDPA on the filing rate of habeas
corpus petitions, nationally and for each Circuit.
Part III: Policy Implications
Chapter 4 presents the policy implications of the research described in Chapters
2 and 3 along with suggestions for continued research on prisoner litigation.
By way of conclusion, each chapter ends with a summary of the principal issues
examined. Relevant literature is reviewed and explanations of analytic techniques are provided
where appropriate throughout the chapters.
Finally the executive summary provides a comprehensive overview of the complete
report. This section summarizes the major issues raised in both parts and provides a complete
list of policy implications and options.
Depending on the reader’s preferences, this evaluation report can be read in several
different ways. Readers interested in a “quick scan” can examine the principal results, issues,
and policy options in the executive summary. Those interested in prisoner civil rights lawsuits
will want to read the study of the PLRA (Chapter 2). Readers interested in habeas corpus will
want to examine the results of the evaluation of AEDPA (Chapter 3). It is recommended that
all readers attend to the policy implications and the policy options that follow from this research
(Chapter 4).

1.2. Benefits of the Evaluation
This evaluation is designed primarily with an intended audience of the U.S. Congress,
state and federal judges, state attorney generals, and state correctional officials, and other state
policy-makers. The results provide lessons about the crafting and implementation of legislation
designed to reduce the volume of prisoner litigation.

Chapter 2: Congress, Courts and Corrections – An Empirical
Perspective on the Prisoner Litigation Reform Act

2.1. Introduction
Let’s review the numbers. By the mid-1990s, state prisoners challenging the conditions
of their confinement accounted for the single largest category of civil lawsuits filed in US
District trial courts. During the peak year of 1996, the number of prisoner lawsuits filed had
grown to 42,522, a total representing more than one in every six federal civil lawsuits filed that
year. 1 These cases were noteworthy not only for sheer size and rapid growth, but also as the
federal court case type with the lowest plaintiff win rate: prisoner litigants were successful in
only 1.4% of lawsuits filed. 2 These three basic facts—volume, trend, and outcome—underlay
passage by the United States Congress of the Prisoner Litigation Reform Act 3 (PLRA). Going
into effect in April, 1996, the PLRA significantly altered the legal circumstances under which
prisoners could file a lawsuit challenging the conditions of their confinement. 4 Four years later
in 2000, the total number of prisoner lawsuits filed in federal courts had fallen by two-thirds to

The Administrative Office of the U.S. Courts counts cases on July 1 to June 30 basis. Hence, the 42,522 cases
represent the number of lawsuits filed by state prisoners in U.S. District Courts between July 1, 1995 and June 30,
1996. Aggregate statistics on prisoner litigation were gathered at the Federal District-Court Civil Cases website
(http://teddy.law.cornell.edu:8090/questcv3.htm). This cite utilizes a database of about 5 million federal districtcourt civil cases terminated over the last 22 fiscal years. The data were gathered by the Administrative Office of the
United States Courts, assembled by the Federal Judicial Center, and disseminated by the Inter-university Consortium
for Political and Social Research.
2
Id. at: http://teddy.law.cornell.edu:8090/questcv3.htm .
3
Prisoner Litigation Reform Act (PLRA) of 1995, Pub. L. No. 104-134, 110 Stat 1321.
4
A prisoner begins the litigation process by filing a complaint. This document is submitted to a court of clerk’s
office. The clerk of court makes an initial decision whether to accept the complaint and place it on the court’s docket
as a lawsuit with a case number. The PLRA modified the requirements for a complaint to be docketed (i.e., accepted
by a court as a Section 1983 lawsuit). Failure to meet the requirements means that a complaint does not become a
lawsuit. Hence, the PLRA is an effort to limit the number of lawsuits. Whether it achieves this goal depends on
whether the sorts of complaints filed by prisoners meet the new requirements.

just over 14,000. Such dramatic change deserves closer scrutiny and by looking inside the
numbers we gain critical perspective on the world of prisoner litigation post-PLRA.
Reaction to the PLRA was immediate and contentious. Many critics argued the Act was
unconstitutional5 , while proponents heralded the PLRA as necessary and effective reform6 . And
given the substantive complexity of the PLRA, much legal scholarship has been directed to
analyzing the numerous constitutional challenges resolved and being resolved in federal courts.
But considerably less attention has been given another area of uncertainty; that is, the actual
impact of the new legislation on volume, trend, and outcomes.
The PLRA had two major features. The first focused on governing the judicial role
following a court determination of unconstitutional prison conditions such as overcrowding and
inadequate medical care. 7 The second dealt with complaints brought by individual prisoners.

See for example Thomas J Butler, The Prison Litigation Reform Act: A Separation of Powers Dilemma, 50 A LA. L.
REV. 585 (1997); Joseph T Lukens, The Prison Litigation Reform Act: Three Strikes and You’re Out of Court—It
May Be Effective, But Is It Constitutional?, 70 TEMP. L. REV. 471 ( 1997).; Catherine G. Patsos, The
Constitutionality and Implications of the Prison Litigation Reform Act, 42 N.Y.L. SCH. L. REV. 205 (1998); Julie M.
Riewe, The Least Among Us: Unconstitutional Changes in Prisoner Litigation Under the Prison Litigation Reform
Act of 1995, 47 DUKE L.J. 117 (1997); James E. Robertson, Psychological Injury and the Prison Litigation Reform
Act: A “Not Exactly,” Equal Protection Analysis, 37 HARV. J. ON LEGIS. 105 (2000).
6
See for example Peter Hobart, The Prison Litigation Reform Act: Striking the Balance Between Law and Order,
44 VILL. L. REV. 981 (1999); Eugene J. Kuzinski, The End of the Prison Law Firm?: Frivolous Inmate Litigation,
Judicial Oversight, and the Prison Litigation Reform Act of 1995, 29 RUTGERS L. J. 361 (1998)
7
There is a coherent body of literature on “conditions cases.” Leading contributors include M ALCOLM FEELEY &
EDWARD RUBIN, JUDICIAL POLICY M AKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICAN’S
PRISONS (Cambridge, UK: Cambridge University Press) (1999); BRADLEY CHILTON, PRISONS UNDER THE GAVEL:
THE FEDERAL TAKEOVER OF THE GEORGIA PRISONS (Columbus: Ohio State University Press) (1991); M ALCOM M.
FEELEY & ROGER A. HANSON, THE IMPACT OF JUDICIAL INTERVENTION ON PRISON AND JAILS: A FRAMEWORK FOR
A NALYSIS AND A REVIEW OF THE LITIGATION COURTS , CORRECTIONS , AND THE CONSTITUTION (John J. DiIulio, Jr.
ed., Oxford University Press. New York) (1990); LARRY YACKLE, REFORM AND REGRET : THE STORY OF FEDERAL
JUDICIAL INVOLVEMENT IN THE ALABAMA PRISON SYSTEM (New York: Oxford University Press) (1989); BEN
CROUCH & JAMES W. M ARQUART , A N APPEAL TO JUSTICE : LITIGATED REFORM OF THE TEXAS PRISONS (Austin:
University of Texas Press) (1989 STEVEN J. M ARTIN & SHELDON EKLAND-OLSEN. TEXAS PRISONS: THE W ALLS
CAME TUMBLING DOWN (Austin: Texas Monthly Press) (1987) and JOHN DIIULIO, GOVERNING PRISONS: A
COMPARATIVE STUDY OF CORRECTIONALMANAGEMENT (1987). There are provisions in the PLRA that
bear on “conditions” cases. One key provision is that time limitations are placed on the duration of court-ordered
temporary injunctive and prospective relief. Additionally, limitations are placed on the amount of fees that can be
paid to attorneys representing successful prisoner plaintiffs. Finally, compensatory damages to successful prisoner
plaintiffs must first be paid to satisfy any outstanding restitution orders against the prisoners. Interestingly, scholars
are not necessarily over anxious or fearful that these provisions spell the end of conditions cases. (See, e.g., Feeley
and Rubin, 1999: 382-84). For the purposes of setting an appropriate and manageable limit to the scope of the
current research, Feeley and Rubin’s views of these provisions are accepted. Hence, our cynosure is dedicated

This latter component, designed to limit “frivolous” litigation, drove much of the congressional
debate and was clearly intended to reduce the number of prisoner lawsuits filed. Because a large
proportion of prisoner lawsuits were being dismissed, the presumption by many drafting the
PLRA was that most were frivolous 8 and numerous examples were assembled in support of that
viewpoint. 9 As a consequence, the PLRA provisions for dealing with frivolous litigation,
primarily restrictions on filing in forma pauperis for previous frivolousness and the assessment
of filing fees, focused on increasing the costs to prisoners of even proceeding to the filing stage.
The goal was to purge the frivolous cases before they ever entered the system.
In this article, we step outside the larger debate on constitutionality to examine the
empirical record. Our goal is to assess the manner in which the PLRA has affected the volume,
trend, and outcomes of prisoner lawsuits. The specific objectives are threefold. In Section II we
set the stage by examining the nature of prisoner litigation just prior to the enactment of the
PLRA. This involves a recap of filing trends as well as pertinent literature, case law and
congressional action in the area of prisoner litigation. The stated rationale for the PLRA was to
curb “frivolous” litigation; yet, the term frivolous can be more provocative then descriptive.
Prisoner lawsuits are dismissed for many reasons and the debate over the latest congressional
effort at reform will benefit from a more nuanced understanding of why cases were being
dismissed pre-PLRA and how the manner of disposition has changed post-PLRA. Drawing on a
previous individual case level study10 combined with data gathered by the United States
exclusively to understanding the changes brought by the PLRA in the number of Section 1983 lawsuits filed by
individual prisoners, which should bear on past policy debates among practitioners.
8
See e.g., 141 Congressional Record S14418 (daily edition Sept. 27, 1995) Statement of Senator Hatch urging
legislation to “bring relief to a civil justice system overburdened by frivolous prisoner lawsuits”
9
See e.g., 141 Congressional Record, S14627 (daily edition Sept. 29, 1995). Proponents of the PLRA presented a
“top ten” list of frivolous prisoner litigation. Making the list were cases such as a prisoner suing for the right to have
smooth rather than chunky peanut butter, a suit over a Nintendo Gameboy, and a suit involving a prisoner’s right to
eat ice cream.
10
ROGER A. HANSON & HENRY W.K. DALEY, CHALLENGING THE CONDITIONS OF PRISONS AND JAILS: A REPORT ON
SECTION 1983 LITIGATION , 1995 BJS DISCUSSION PAPER, NCJ 151652, (Washington, D.C.: U.S. Dept. of Justice,
Office of Justice Programs, Bureau of Justice Statistics) (1995)

Administrative Office of the Courts (USAOC) we examine more closely the nature of prisoner
litigation at the dawn of the PLRA. These results also provide a benchmark for assessing
subsequent changes in filing patterns and dispositional outcomes.
In Section III we introduce an approach to modeling the trend in prisoner litigation and
testing statistically the impact of the PLRA on national and Circuit Court filing patterns. The
analysis uncovers and confirms the differential impact of the PLRA at the Circuit Court level.
This section also provides a preliminary analysis of how the PLRA has affected the resolution of
prisoner litigation. The article concludes that the impact of the PLRA on observed patterns of
prisoner litigation is largely in line with the goals stated by the authors of the legislation and of
particular interest given previous unsuccessful efforts by the Congress to curb prisoner lawsuits.
2.2. History, Literature, and Practice
2.2.1. A Short History : The United States Supreme Court made a series of ground-breaking
decisions in the 1950s and 1960s providing a foundation for state prisoners to challenge the
conditions of confinement. 11 Whereas prisoners historically had the opportunity to file writs of
habeas corpus to challenge the validity of their detention and imprisonment, the parallel
opportunity to challenge the conditions of confinement did not emerge until more recently. The
Court reversed a hands-off approach to incarceration with its decision in 1964 that state prisoners
could avail themselves of the federal trial process and file lawsuits seeking money damages
when correctional policies, procedures and practices violated the prisoners’ rights 12 . Beginning
in the 1970s, a wide ranging category of rights became defined by the U.S. Supreme Court and

The development of the prisoner rights movement, which the U.S. Supreme Court’s decisions fostered, are
described well in JAMES JACOBS, STATEVILLE : THE PENITENTIARY IN M ASS SOCIETY, (Chicago: University of
Chicago Press) (1977).
12
Cooper v. Pate, 278 U.S. 546 (1964).

the U.S. Courts of Appeal. 13 Because these cases are filed under Section 1983 of Title 42 of the
U.S. Code, they are commonly called Section 1983 lawsuits.
Initially, the number of Section 1983 lawsuits filed nationally in the 1960s was small.
The Administrative Office of the U.S. Courts counted only 218 cases in all U.S. District Courts
during 1966, the first year that state prisoners’ lawsuits were recorded as a specific category of
litigation. The debate over prisoner litigation heated up as the numbers of lawsuits filed in U.S.
District Courts rose to a visible level. Within five years of Cooper v. Pate, the number of cases
had reached approximately 2,500 and continued to grow without any appreciable decrease
through 1995. Critics contend that most prisoner lawsuits are frivolous, crowd already crowded
court dockets, and, in the few cases when meritorious, resemble small claims cases best handled
outside the federal courts. In response, defenders of prisoners’ rights asserted that Section 1983
lawsuits are not burdensome, can and should not be screened out of the court system because no
one knows how many are frivolous or without merit. Furthermore, they should not be siphoned
out of the federal system because the state courts might not be sufficiently independent when
prisoners take the state to court. 14

Prisoners’ rights recognized in these decisions included religious freedom to members of minority religions in
Cruz v. Beto, 405 U.S. 319 (1972), adequate medical treatment in Estelle v. Gamble, 429 U.S. 97, 103 (1976),
protection against excessive force by correctional officers in Hudson v. Mcmillian, 112 U.S. 995 (1992) or violence
by other inmates in Farmer v. Brennan, 114 U.S. 1970 (1994), due process in disciplinary hearings in Wolff v.
McDonnell, 418 U.S. 539 (1974), and access to law libraries in Bounds v. Smith, 430 U.S. 817 (1977). A description
of the cases establishing prisoners’ rights is available in Krantz (1986)
14
The composition of the critics includes a former Chief Justice of the U.S. Supreme Court, other federal judges,
law professors and correctional officials. See Warren E. Burger, A Proposal: National Conference on Correctional
Problems paper presented at the American Bar Association Meeting, Dallas (1969), Warren E. Burger, Chief Justice
Burger Issues Year End Repor,t 62 A.B.A.J. 988 (1976), and Warren E. Burger, Agenda for Crime Prevention and
Correctional Reform, 67 A.B.A.J. 988 (1981); Federal Courts Study Committee, Judicial Conference of the United
States, Report of the Federal Courts Study Committee, Washington, D.C. (1990); RICHARD POSNER, THE FEDERAL
COURTS: CRISIS AND REFORM (Cambridge: Harvard University Press) (1985); Patrick Baude, The Federal Courts
and Prison Reform 52 IND. L.J. 747 (1977); A.E. Dick Howard, I’ll See You In Court: The States and the Supreme
Court National Governors’ Association, Washington, D.C. (1980); and John R. Manson, Statement by Federalism
and the Federal Judiciary: Hearings Before the Subcommittee on the Separation of Powers of the Senate Committee
in the Judiciary, 98th Congress, 1st Session (1983). Interestingly, the advocates of prisoners’ rights and federal court
resolution of Section 1983 lawsuits look very similar to the critics in terms of their positions. The advocates include
a former Associate Justice of the U.S. Supreme Court; other federal judges and law professors. See Harry A.
Blackmun, Section 1983 and Federal Protection of Individual Rights”—Will The Statue Remain Alive or Fade

A major congressional response to the increasing volume of prisoner litigation occurred
in 1980 when the U.S. Congress passed the Civil Rights of Institutionalized Person Act
(CRIPA). 15 Under CRIPA, state correctional agencies could voluntarily seek certification of
their grievance procedures from the Attorney General and federal courts. If certified, the
procedures then would have to be exhausted prior to the filing of lawsuits against state
correctional officers. CRIPA never really took hold because few states sought certification and
with the exception of the U.S. Court of Appeals for the Ninth Circuit, few federal judges showed
an inclination to certify state mechanisms.
The expansion of prisoners’ rights and the limited impact of CRIPA created the potential
for increasing prisoner lawsuits, but it was unprecedented growth in prison populatio n that made
it a reality. Between 1972 and 1996, 16 the number of state prisoner Section 1983 lawsuits filed in
U.S. District Courts increased by 1,153 percent (from 3,348 to 42,522), while state prison
population increased by 517 percent (from 174,379 to 1,076,625). As shown in Figure 2-1, the
increase in both trends was remarkably consistent until the enactment of the PLRA in 1996. The
close visual correspondence between the number of state prisoners and the number of Section
1983 lawsuits since the early 1970s is borne out by statistical analysis. 17

Away? 60 N.Y.U. L. REV. (1985); Harry Edwards, The Rising Workload and Perceived ‘Bureaucracy’ of the
Federal Courts: A Causation-Based Approach to the Search for Remedies, 68 IOWA L. RE V. 871 (1983); and
William Bennett Turner, When Prisoner Sue: Section 1983 Suits in the Federal Courts, 92 HARV. L. RE V. 610
(1979).
15
Civil Rights of Institutionalized Persons Act (CRIPA) 1980, Pub L No 96-247, 94 Stat 349.
16

While 1966 was the first year that state prisoners’ lawsuits were recorded as a specific category of litigation by the
Administrative Office of the U.S. Courts (AO), data supplied by the AO commenced in 1972.
17
See Fred Cheesman, II, Roger A. Hanson, and Brian J. Ostrom, A Tale of Two Laws: The U.S. Congress Confronts
Habeas Corpus Petitions and Section 1983 Lawsuits, 22 LAW & POLICY 89 (2000) for a complete analysis of the link
between prison population and the volume of prisoner litigation. Cheesman et al developed a dynamic regression model using
state prisoner population as the independent variable to forecast the expected number of prisoner lawsuits in the future. In
addition, the model was used to estimate the volume of prisoner litigation ten years down the road. The approach used was based
on the observed trend in prisoner litigation following the implementation of the PLRA, an appreciation for the initial uncertainty
in the litigation environment created by the passage of new law, and the strong established relationship between prison

Figure 2-1: Number of Section 1983 Lawsuits Filed by State Prisoners
and State Prisoner Population, 1972-2000

Section 1983 Lawsuits

40,000
35,000

Estelle v. Gamble
Cruz v. Beto
Bounds v. Smith

1,200,000

CRIPA

1,000,000

30,000
25,000

800,000

Section 1983 Cases

20,000

600,000

15,000

400,000

State Prisoner Population

10,000

200,000

5,000

20
00

19
98

19
96

19
94

19
92

19
90

19
88

19
86

19
84

19
82

19
80

19
78

19
76

0
19
74

19
72

Year

Lukens succinctly sums up the perspective of reformers in the mid-1990s: “Because the
number of state and federal prisoners continue[d] to rise at an alarming rate, it [was] clear that
Congress had to take some steps to address the increasing burden of the federal courts arising out
of the tremendous increase in prisoner civil rights litigation.” 18 And the PLRA was born.
2.2.2. PLRA Provisions : There are three provisions of this statute especially relevant to
understanding the trends in case filings. They are:

population and the volume of prisoner litigation. Finally, this effort to chart the future course of prisoner litigation was the basis
for estimating how changing filing patterns affected the work of the federal bench.
18

Lukens supra note 5 at 491

State Prisoner Population

Prisoner Litigation Reform Act
1,400,000

45,000

•

Inmates must exhaust all available administrative remedies before filing the case, even if
a facility’s grievance procedures have not been certified by the U.S. Department of
Justice or a federal court. 19

•

The import of these requirements is that until and unless they are satisfied, federal trial
courts need not accept a prisoner’s rights case simply because a prisoner has filed a complaint.
The courts are not required to docket the complaint as a case, give it a case number and place it
in the queue for court action.

The PLRA amended Sec.7. Suits by Prisoners of the Civil Rights of Institutionalized Persons Act. Specifically,
42 U.S.C. 1997e was amended. The PLRA added the following language: “(a) Applicability of Administrative
Remedies. ___ No action shall be brought with respect to prison conditions under section 1979 of the Revised
Statutes of the United States (42 U.S.C. 1983), or any other federal law, by a prisoner confined in any jail, prison or
other correctional facility until such administrative remedies are available and exhausted.” This provision does not
prohibit prisoners from bringing challenges to prison conditions under a state law or constitution without exhausting
state remedies, but that action would be precluded from being filed in federal court. It would have to be filed in
state court.
20
The PLRA amended Section 1915 of title 28, United States Code,. The following language was added: “(b)(1)
Notwithstanding subsection (a), if a prisoner brings a civil action or files an appeal in forma pauperis, the prisoner
shall be required to pay the full amount of a filing fee.” Procedures were specified in the PLRA on how the fees
were to be paid.
21
The PLRA amended Section 1915 of title 28, United States Code by adding the following language “(g) In no
event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if
the prisoner has on 3 or more 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.” Again,
this provision pertains to complaints filed in federal court and does not bear on suits filed in state court.
The PLRA amended Chapter 123 of title 28 United States Code. The following language was added “§ Screening.
(a) Screening. --- The court shall review, before docketing, if feasible, or in any event, as soon as practical after
docketing a complaint in a civil action in which a prisoner seeks redress from a governmental entity.”
“(b) Grounds for dismissal. --- On review, the court shall identify cognizable claims or dismiss the
complaint, or any portion of the complaint, if the complaint --“(1) is frivolous, malicious, or fails to state a claim on which relief may be granted, or”
“(2) seeks monetary relief from a defendant who is immune from such relief.”
21

2.2.3. Literature : The plain language of the PLRA is to reduce the volume of prisoner
litigation. 22 While the post-PLRA decline in prisoner lawsuits is apparent now, at the time the
legislation was introduced there was considerable uncertainty over whether the PLRA would
lead to a decrease, increase, or no change in the volume of prisoner litigation. 23 Yet this issue
has received little attention in the academic literature. Because the primary focus of the sizable
and growing number of law review articles on the PLRA tends toward critical analysis of the
PLRA’s constitutional validity, the authors are typically agnostic or silent on the legislation’s
observable effects on the volume of litigation. 24 This brief review of the literature helps shape
the subsequent analyses by making explicit several issues that are best addressed through
empirical study.
Initial skepticism over the impact of the PLRA on prisoner litigation was stated most
cogently and bluntly in a closely reasoned analysis of the new law conducted by Tushnet and

See e.g., Kincaide v. Sparkman, 117 F.3d 949, 951 (6th Circuit 1997: “the text of the Prisoner Litigation Reform
Act itself reflects the that the drafters’ primary objective was to curb prison condition litigation”; Mitchell v.
Farcass, 112 F.3d 1483 1488 (11th Circuit 1997): “Congress promulgated the act to curtail abusive prisoner
litigation.”; Hampton v. Hobbs, 106 F3d 1281, 1286 (6th Circuit 1997): “The legislation was aimed at the
skyrocketing numbers of claims filed by prisoners—many of which are meritless—and the corresponding burden
those filings have placed on the federal courts.” Reprinted in James E. Robertson, Psychological Injury and the
Prison Litigation Reform Act: A “Not Exactly,” Equal Protection Analysis, 37 HARV. J. ON LEGIS. 105 (2000), p.
113, footnote 53.
23
While many in the 104th Congress argued the PLRA would reduce the number of Section 1983 cases filed, others
disagreed. During congressional debate, Senator Paul Simon stated his concern that the new legislation would
actually increase the volume of lawsuits (142 Congressional Record S2297(daily edition March 19, 1996)
24
See, for example, Gigetle M. Bejin, The 1995 Legislation for Prisoner Litigation Reform: Has the Pendulum
Swing the Other Way? 74 U. DET . MERCY L. REV. 557 (1997); Hobart supra note 6; Jason E. Pepe, Challenging
Congress’s Latest Attempt to Confine Prisoners’ Constitutional Rights: Equal Protection and the Prison Litigation
Reform Act, HEMILE L. REV. 59 (1999); Robertson supra note 6. In contrast, practitioners who have been following
the trends in prisoner litigation and who are aware of past debates understandably are more cognizant of possible
and actual changes in the number of lawsuits than either legal scholars for the law and society scholars focused on
conditions cases). As it turns out, Chief William Rhenquist Justice of the U.S. Supreme Court, who fits the
description of an interested practitioner, responded with alacrity to the immediate consequences of PLRA. He
extolled and heralded the changes that he could discern (See William H. Rehnquist, The Notion of a Living
Constitution, 54 Tex. L. Rev. 693 (1976)). Media covering the PLRA and its impact actually responded even more
quickly. (See “Reform Act Cuts Prisoner Law Suits,” NATIONAL LAW JOURNAL, August 18, 1997). Interestingly,
legal scholars continued to be skeptical of the PLRA’s effects on the trends in filings. For example, Tushnet and
Yackle observed that despite the report of a decrease in filing rates by the NATIONAL LAW JOURNAL that they “think
that evidence from a rare extended period of time is necessary before one could confidently attribute such a decline
to the statute.” (Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the
Antiterrorism and Effective Death Penalty Act, 41 DUKE L. J. 1 (1997) at 64).

Yackle 25 . They argued that the federal courts will work to “harmonize the [PLRA’s] provisions
with preexisting law, ” therefore leading courts to interpret the new provision in a manner as to
make only “marginal changes to preexisting law.”26 They go on to predict that the “PLRA’s
provisions dealing with frivolous individual litigation will have [little] practical impact…” and
will result in “little change” in the volume of prisoner litigation. While it is difficult to say how
individual judges gauge the statutory consequence of individual provisions of the PLRA, it is
possible to measure the change in the number of Section 1983 lawsuits filed. By benefit of
hindsight we know the number of prisoner lawsuits has fallen, but statistical analysis is needed to
determine whether the decline is only “marginal” or if the PLRA marks a significant breaking
point in the long-term trend of prisoner litigation.
Many authors examine constitutional challenges to the PLRA and often reference the
variation in interpretation at the Circuit Court level. Butler neatly summarizes the legal
environment following passage of the PLRA: “the Act raised constitutional separation of powers
concerns immediately after it was passed. As a result, prison rights activists began challenging
the PLRA…[and] the current status of PLRA litigation varies from Circuit to circuit.”27 Hobart
goes further to analyze the current state of the PLRA with respect to eleven separate provisions
of the Act. His analysis is necessarily at the Circuit level as he explores the extent of agreement
and disagreement over interpretation of each provision. 28 Such analysis carries the assumption,
at least implicitly, that judicial interpretation of the PLRA provisions affects the operation of the
25

Tushnet and Yackle, supra note 24
Tushnet and Yackle, supra note 24, at. 58. In summary, they state: “Whatever the PLRA achieves, then, cannot
be very far different from what existing law prescribes—or what the courts themselves prescribe were they faced
with some of the issues that statute addresses. The basic standard set out in the PLRA…either restates existing law,
is unconstitutional, or changes existing law in minor ways.”
27
Butler supra note 5, at 586
28
Hobart supra note 6, at 986-987. E.g.,, “Like many other aspects of the PLRA, controversy revolves around the
retroactivity of the attorney fee provision. For example, the US Court of Appeals for the Fourth Circuit has
concluded that all attorney fees awarded after the passage of the PLRA must conform to its restrictions. Conversely,
the US Court of Appeals for the Seventh and Eighth Circuit maintain that is would be manifestly unjust to apply the
PLRA’s restrictions to cases pending at the time of passage.”
26

law in practice. Given non- uniformity in legal interpretation at the Circuit level, a natural
question is whether this translates into differences in observed patterns of prisoner litigation at
the Circuit level.
As the observed reality of a decline in prisoner lawsuits became apparent, some authors
raised the fundamental question of whether the PLRA was sufficient to differentiate the frivolous
from the meritorious. Lukens dissents and states the PLRA “is much broader than necessary to
achieve the intended reduction in frivolous prisoner litigation, and brings within its broad sweep
meritorious claims as well as frivolous claims.”29 The concern is that the blunt character of the
PLRA restrictions will allow the circuits to too easily reject a prisoner’s lawsuit regardless of
merit. A somewhat different tack is taken by Kuzinski who argues “[h]owever deserving some
claims are, the ma jority of inmate claims are either meritless or overtly frivolous.”30 As a
consequence, courts are awash in “junk litigation”31 to the detriment of prisoners with valid
claims. Recognizing that an overabundance of lawsuits without merit can usurp the meritorious,
one Circuit judge notes the prisoner with a valid claim “must hope that in the sea of frivolous
prisoner complaints, [their] lone, legitimate cry for relief will be heard by a clerk, magistrate or
judge grown weary of battling the waves of frivolity.”32 The empirical question, then, is how
does the composition of prisoner lawsuits pre-PLRA compare to the composition post-PLRA?
One measure of success for proponents of the PLRA is showing that the elimination of frivolous
lawsuits has been the source of decline in Section 1983 filings.
2.2.4. Practice: Understanding the reality of prisoner litigation requires taking a closer look at
how, in fact, Section 1983 cases are resolved. Examining the data compiled by the AO (Table 229

Lukens supra note 5, at 472.
Kuzinski supra note 6, at 364.
31
J.W. HOWARD JR., COURTS OF APPEAL IN THE FEDERAL JUDICIAL SYSTEM (Princeton: Princeton University
Press) (1981). He argues prisoner litigation is an exemplar of “junk litigation,” forcing virtually all Federal Circuit
Courts to shift part of their business from hand-crafted to mass-production decision techniques.
32
Reported in Kuzinski supra note 6, at 369.
30

1) for the years immedia tely proceeding enactment of the PLRA confirms the majority of
prisoner lawsuits are dismissed outright (71% in 1993) or resolved by judgment on a defendant’s
motion that also typically results in dismissal (26% in 1993). Only about 3 percent were
resolved by jury or non-jury trial in 1993. Moreover, the manner of disposition is very consistent
for the period 1993-1996.
Table 2-1: Manner of Disposition for Section 1983 Cases33

Year
PrePLRA
1993
1994
1995
1996
PostPLRA
1997
1998
1999
2000

Dismissal

Judgment on
Defendant
Motion

Jury Verdict

Directed
Verdict

Non-Jury
Verdict

Total Dispositions

#
22,509
25,922
29,142
30,422

%
71%
72%
71%
72%

#
8,338
9,176
11,069
11,072

%
26%
25%
27%
26%

#
263
381
338
380

%
1%
1%
1%
1%

#
43
48
36
54

%
0%
0%
0%
0%

#
501
571
616
594

%
2%
2%
1%
1%

#
31,654
36,098
41,201
42,522

%
100%
100%
100%
100%

22,235
14,461
12,016
11,149

72%
75%
79%
79%

7,545
4,083
2,830
2,548

25%
21%
18%
18%

400
351
284
250

1%
2%
2%
2%

28
35
27
20

0%
0%
0%
0%

481
245
147
104

2%
1%
1%
1%

30,689
19,175
15,304
14,071

100%
100%
100%
100%

For the period following the enactment of the PLRA (1997-2000), the most obvious
change, of course, has been the rapid and precipitous decline in the volume of prisoner litigation.
Courts are using the PLRA: “Given the crush of inmate litigation, it was quite predictable that
judges would be quick to use this new weapon to clear their dockets…The courts have also
started apprising inmate litigants of the law’s ramifications, in an attempt to have the inmates
regulate their own actions before the new procedures authorized by the PLRA are used against

Op. Cit. 2 http://teddy.law.cornell.edu:8090/questcv3.htm . The manner of disposition categories shown condense
and summarize the categories used by the USAOC. Dismissal includes: dismissed for want of prosecution;
dismissed for lack of jurisdiction; dismissed: voluntarily; dismissed: settled; dismissed: other; remanded; transfer;
and statistical closing. Judgment on Defendant Motion includes: judgment on defendant motion, judgment on
consent, judgment on default.

them.”34 If inmates observe the provisions of the PLRA and listen to warnings emanating from
the courts, the observed drop should primarily be a drop in frivolous litigation. Although the
overarching pattern of dispositions remains unchanged (most cases are dismissed and few cases
are resolved at trial), subtle and suggestive changes have occurred. Relatively more cases are
being dismissed with little or no judicial involvement (e.g., dismissed for want of prosecution
and for lack of jurisdiction), fewer cases are being resolved by judgment on defendant motion,
and jury trial rates are up. A later section provides a more detailed look at the resolution of
Section 1983 lawsuits post-PLRA at the Circuit Court level.
The data clearly show the prevalence of dismissals in the resolution of Section 1983
lawsuits. As a consequence, speculation on the potential impact of the PLRA would benefit
from a more nuanced understanding of the lawsuits being dismissed. What is the reason for
dismissal? What share of the cases meet even the most basic procedural requirements and would
remain eligible under the provisions of the PLRA? While the AO does not compile this
information, one extensive study casts light on the nature of prisoner litigation prior to the
enactment of PLRA. Hanson and Daley examined over 2,700 Section 1983 cases resolved by
U.S. District Courts in nine states (Alabama, California, Florida, Indiana, Louisiana, Missouri,
New York, Pennsylvania and Texas) during 1993. 35
Focusing strictly on the cases dismissed, Hanson and Daley’s careful review of case files
showed (Table 2-2) the most frequent reason for a court’s decision to dismiss a Section 1983

Kuzinski supra note 6, at. 387-388.
ROGER A. HANSON & HENRY W.K. DALEY, CHALLENGING THE CONDITIONS OF PRISONS AND JAILS: A REPORT ON
SECTION 1983 LITIGATION , 1995 BJS DISCUSSION PAPER, NCJ 151652, (Washington, D.C.: U.S. Dept. of Justice,
Office of Justice Programs, Bureau of Justice Statistics) (1995). The case level analysis conducted by Hanson and
Daley found disposition patterns closely in line with data reported by the AO: 74 percent of Section 1983 lawsuits
were subject to a court dismissal, 20 percent were dismissed on defendant’s motion, 4 percent were stipulated
dismissals and 2 percent were resolved at trial.
35

lawsuit was because the prisoner failed to respond to a court order within a required time
period. 36
Table 2-2: Reasons for court dismissals of Section 1983 lawsuits 37
Reasons
Plaintiff failed to comply with court rules (e.g., did not respond to court’s requests
for information in a timely manner, nonindigent prisoner failed to pay filing fees)
No evidence of constitutional rights violation (e.g., action by correctional officer
might have been negligent but there is no evidence of a deliberate intent to harm
the prisoner)
Frivolous (i.e., no arguable basis in law or fact)
Issue is noncognizable under Section 1983 (e.g., habeas corpus)
Defendant has immunity (e.g., judge, prosecutor)
Defendant is not acting under color of state law (e.g., wife, fellow prisoner)
Other reasons (e.g., the issue if moot because the prisoner is no longer incarcerated
and sought declaratory relief)
Total

n=3136
38%

19%
19%
7%
4%
3%
9%
99%

Additionally, if the court could determine no evidence of a constitutional rights violation,
the case was dismissed (19%). 38 Other reasons for court dismissals were that the lawsuits were
truly frivolous (e.g., the prisoner complained because he received chunky rather than creamy
peanut butter) (19%). Alternatively, the issue raised was not covered by the scope of Section
1983 (e.g. the case is a challenge to the validity of conviction) (7%); the defendant (e.g., state
trial judge) had immunity (4%); or the defendant (e.g., privately retained criminal defense
attorney) was not acting under color of state law (3%).
What emerges from Table 2-2 is that only 19 percent of the dismissed cases survived
even the most elemental procedural or substantive hurdles. This fraction was not dis missed
36

For example, a prisoner might have failed to respond to a report prepared by the correctional institution on the
treatment of the prisoner. The court notifies the prisoner that the report will be treated as a motion for summary
judgment and that the motion will be granted, unless the prisoner files an objection. If the court neither receives a
response to the notice nor receives any objection to the motion, the court thereby grants the motion.
37
Taken from Hanson & Daley supra note 25, at 25
38
For example, a prisoner may be injured after slipping on a wet floor outside the cell. The court will dismiss this
claim if there is no evidence of deliberate intent by correctional officials to harm the prisoner by failing to maintain
adequate physical conditions. The slippery floor might be the result of negligence, but ordinary negligence is not a

because the prisoner plaintiff failed to comply with court rules or because the case was found to
be without a basis in fact or law. Instead, a court found that these cases failed to meet the
criterion of implicating a constitutional standard. For example, a prison official might have been
negligent in allowing water to remain on a walkway, but a prisoner did not show that such
conduct was a product of deliberate indifference or wanton neglect. What this extensive case
study suggests is that just prior to the enactment of the PLRA, a sizable percentage of the
prisoners’ Section 1983 lawsuits dismissed, perhaps as high as 81 percent, would likely find it
difficult to satisfy additional procedural requirements, such as those eventually established under
PLRA.
This empirical profile of how prisoner litigation was resolved pre-PLRA provides a
framework and benchmark for examining prisoner litigation in the post-PLRA world. As such, it
provides three testable propositions. First, if the PLRA is implemented in good faith, we would
expect to see an immediate and significant drop in the number of prisoner litigation filings. The
Hanson and Daly results suggest that the number of lawsuits that will not sustain additional and
new procedural scrutiny may well be a majority of the cases. Of the 74 percent of cases
dismissed by a court before the enactment of the PLRA, as few as 19 percent were potentially
robust enough to sustain strengthened procedural review. Hence, if the PLRA operates as
conceived by its authors, as many as 60 percent fewer Section 1983 lawsuits will be filed after
PLRA than before. 39

cognizable cause of action under Section 1983. For this reason, the federal court will dismiss the case as an invalid
Section 1983 cause of action and might suggest that the prisoner pursue the matter as a tort action in state court.
39
Taking 81 percent of 74 percent yields 60 percent. The upper bound prediction of a 60 percent decrease is a midto long-term projection. Initially, the decrease could be considerable because many prisoners will be filing
complaints with limited information on the PLRA’s provisions. As a result, in the short run there may be more than
a sixty percent decrease in the number of Section 1983 lawsuits as the initial wave of post-PLRA petitions fail one
or more of the new provisions and, thus, are not accepted as Section 1983 lawsuits. Overtime prisoners will gain
information on the new rules (e.g., from jail house lawyers, prisoner assistance groups). It is likely that, ultimately,
prisoners will adapt to the new system and file complaints that meet the new requirements. As a result, the trend in
Section l983 lawsuits will eventually reach a new, albeit lower, equilibrium relationship with prison population.

Second, the twin factors of unsettled law and judicial independence lead us to expect
non-uniformity in the trend and disposition of prisoner lawsuits at the Circuit level. The
constitutional legitimacy of the PLRA and its provisions is still being determined in the federal
courts. Although a majority of federal circuits have upheld the PLRA and many constitutional
challenges have been settled, the circuits have moved at varying speeds and with varying levels
of internal opposition. Each Circuit has evolved its own style in implementing the PLRA. This is
hardly surprising given the substantive complexity of the Act and, that by virtue of jurisdictional
and administrative independence, no two Circuit Courts are alike. 40
Despite the adoption of uniform rules of appellate procedure in 1968, the power of
Circuit Courts to define subsidiary rules lends surprisingly little standardization to internal
decision- making or administrative practice. Therefore, the characteristics of each region of the
country within the jurisdiction of a particular Circuit tend to be reflected in the business of each
Court. 41 To understand the regional forces underlying the national trend and to understand
differences in the implementation strategies of different circuits, we conduct an analysis of the
impact of the PLRA at the Circuit Court level. This analysis also contributes to our knowledge
about policy-implementation in the Federal Court System.
Third, if the PLRA is operating as intended, we have definite expectations for where the
decrease in filings should occur: the procedurally weak cases. To conclude that the PLRA is
meeting a sound and legitimate public policy goal, it is necessary to show that the new
provisions succeed in differentiating and eliminating the non- meritorious cases. The odds that
federal judges will successfully discern the meritorious cases increases considerably if the
system is not overcrowded with the frivolous. Therefore, to fully evaluate the impact of the
40

J.W. HOWARD JR. supra note 31
Among Circuit Courts, differences in the composition of caseloads (see Lawrence Baum, Sheldon Goldman, and
Austin Sarat, The Evolution of Litigation in the Federal Courts of Appeals: 1895-1975, 16 LAW & SOC’Y REV.
41

PLRA, it will be necessary to determine whether the nature of prisoner lawsuits, their handling
and outcomes have changed in line with stated goals.
2.3. The Results
2.3.1. National Trends : Two previous studies examined the effects of the PLRA on a national
level. An inquiry by Cheesman, Hanson and Ostrom42 examined historical patterns of filing of
Section 1983 lawsuits in U.S. District Courts as well as factors that were hypothesized to
influence the rate of filing. They established a clear and strong relationship between the size of
the state prison population and the number of Section 1983 lawsuits filed. What is not obvious
about this relationship is that it persisted over previous decades despite substantial changes in
legal doctrines and legislation (e.g., CRIPA) designed to affect the rate of filing of such lawsuits,
until the implementation of the PLRA.
Although Cheesman et al find that the PLRA has significantly lowered the number of
prisoner lawsuits filed, they hypothesize that the new lower, stable level of filings is a short-run
phenomenon. 43 They assert that prisoner litigation filing rates remain tied to the number of state
prisoners: the PLRA has merely altered the proportion of inmates eligible or able to afford to
litigate. The PLRA is designed to discourage frivolous lawsuits, not all lawsuits. Provisions of
the PLRA will not affect all prisoners in the same way. “Hence, whereas some share of the
original pool of prisoners filing Section 1983 lawsuits will be eliminated because of eligibility or
fiscal restrictions, prisoner litigation will remain related to state prison population.”44 Cheesman
et al hypothesize that the fundamental linkage between state prison population and the number of
291 (1981)) and the rate at which litigants challenged decisions subject to appeal (J.W. HOWARD JR. supra note 31)
have been previously documented.
42
Cheesman, Hanson, & Ostrom supra note 17.
43
“Examining monthly data over the last six years shows that the PLRA produced an immediate drop in the volume
of Section 1983 lawsuits. It also is evident that the decreasing trend in the number of Section 1983 lawsuits ended
around March of 1997—almost exactly one year after the enactment of the PLRA. Since then, the number of
lawsuits has [stabilized at] between 2,000 and 2,500 per month.” (Cheesman, Hanson, & Ostrom supra note 17 at
96).

Section 1983 lawsuits has not been broken, and that future increases in prison population will
lead to more lawsuits, albeit from a smaller proportion of prisoners.
Scalia 45 provides a second and refined study. He examines the rate of mo nthly Section
1983 case filings from October 1991 to September 2000. Using the statistical technique of
interrupted time-series analysis 46 , Scalia demonstrates that the observed decline in Section 1983
lawsuits that occurred after the implementation of the PLRA was statistically significant.
Scalia 47 , measuring the filing rate as the number Section 1983 lawsuits per 1,000 prisoners,
concludes “the PLRA resulted in 3.4 fewer civil rights petitions filed per month for every 3,000
state prison inmates.”
Our analysis of the national trend in prisoner lawsuits extends the work of Scalia to
determine the size of the drop as well as examining the trend for evidence that it has reestablished its relationship with state prison population. We define the pre-PLRA period from
April 1992 to April 1996 and the post-PLRA period from May 1996 to December 2000, a
slightly different time period than Scalia employed. 48 The following analyses are based on the
number of lawsuits per 1,000 prisoners (national level) and per 10,000 prisoners (Circuit Court
level). It is appropriate to compare filing rates when examining the possible effects of the PLRA
because, as discussed above, there is evidence that the number of lawsuits is propelled by the
44

Cheesman, Hanson, & Ostrom supra note 17 at 95.
JOHN SCALIA, PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000 WITH TRENDS 1980-2000, NCJ 189430
(Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics) (2001).
46
Essentially, interrupted time series involves three steps: (1) Fitting an ARIMA model to the pre-intervention time
series, (2) modeling the intervention, usually as a persistent change in level (a “step”) or a temporary change in level
(a “pulse”), and (3) assessing the fit of the pre-intervention ARIMA model combined with the intervention model
for the combined pre- and post-intervention time series. The test of significance for the intervention factor can be
interpreted to assess the impact of the intervention. The time series data must either be stationary or be made
stationary (usually by “differencing”) before the interrupted time series can be performed. The Augmented DickeyFuller test is often used to test for stationarity.
47
Scalia supra note 45 at 7.
48
We also use the technique of interrupted time-series analysis that Scalia employs, after first conducting unit root
tests to determine whether the national time series is stationary (see, e.g., J. G. MACKINNON, CRITICAL
VALUES FOR COINTEGRATION TESTS, LONG –RUN ECONOMIC RELATIONSHIPS: READINGS IN
45

number of prisoners. 49 The use of rates minimize the chances of confusing the effects of a
change in prisoner population with the effects of PLRA.
As shown in Figure 2-2, the number of Section 1983 lawsuits decreased abruptly after
enactment of PLRA. The trend continues to be downward, although at a slower pace, during the
remainder of the post- implementation period (i.e., after April, 1996). There is a considerable
difference in the average monthly number of lawsuits when the pre- and post-implementation
periods are compared (4.1 vs. 2.4 lawsuits per 1,000 prisoners, respectively).

Figure 2-2
Average number of Section 1983 law suits filed in all
U.S. District Courts per 1,000 prisoners nationally
(by Month, April 1992 - December 2000)
60
PLRA Enacted
Number of
Filings per
10,000 50
Prisoners

0
199204
199208
199212
199304
199308
199312
199404
199408
199412
199504
199508
199512
199604
199608
199612
199704
199708
199712
199804
199808
199812
199904
199908
199912
200004
200008
200012

Year/Month

Pre-PLRA period Average: 4.1

Post-PLRA period Average: 2.43

Standard Deviation: .31

Standard Deviation:

.56

COINTEGRATION (R.F. Engle and C.W.J. Granger eds., Oxford University Press. New York) (1991). The
Augmented Dickey-Fuller test indicated that the national time series was stationary
49
See Cheesman, Hanson, & Ostrom supra note 17 at 98-102.

Section 1983 lawsuits have dropped significantly since passage of the PLRA, confirming
our first testable proposition at the national level. 50 Figure 4 reveals that the PLRA has affected
both the volume and trend of prisoner litigation: The PLRA has resulted in a 40 percent decrease
in the average monthly number of Section 1983 cases filed nationally.
The post-PLRA trend is suggestive for two related issues. First, based on the analysis of
Section 1983 cases dismissed pre-PLRA (Figure 3), we hypothesized that as many as 60 percent
of Section 1983 complaints might not withstand the additional procedural requirements
established by the PLRA. Clearly the size of the decrease is in line with this prediction. But the
extent to which the drop in Section 1983 filings constitutes a drop in the volume of “frivolous”
litigation awaits further inquiry. The precise nature of the cases not filed because of the PLRAs
provisions (meritorious v. nonmeritorious) is unknowable. However, in a subsequent section of
this article, we infer how the PLRA has affected the handling of prisoner lawsuits filed when we
compare the manner of disposition for Section 1983 lawsuits pre- and post-PLRA. Second, there
is no evidence that the number of Section 1983 lawsuits filed has resumed its earlier linkage with
state prison population. Given that the provisions of the PLRA remain a somewhat unsettled
area of law, it remains an open question as to whether the PLRA has successfully broken the
connection with state prison population.
2.3.2. Circuit Trends : The Circuits of the U.S. Court of Appeal are prisms through which to see
the effects of the Prisoner Litigation Reform Act (PLRA) on the filing rates in U.S. District
Courts. 51 Variation in terms of geography and demographics provide one rationale for

P<.05; See Figure 16 for details.
In this section of the article, we continue to use an U.S. District Court database. The national level findings
discussed above is that the national level is an aggregation of all U.S. District Courts whereas this section is
grouping U.S. District Courts into one of eleven sets with each set corresponding to the boundaries of a particular
Circuit’s jurisdiction. Hence, the data presented in this section are not appeals filed by prisoners under Section 1983
in each of the Circuits. They remain U.S. District Court case filings.
51

decomposing the national data on Section 1983 filing trends to the Circuit Court level. 52 Of more
importance, though, the Circuits are recognized as the legal policy-making bodies in the federal
court system. They are in fact, if not in theory, the final arbiters of most legal disputes. They are
in a position to render their distinctive takes on doctrine and to inform and guide U.S. District
Courts within their respective jurisdictions. 53 Most of the expansion and the delineation of
prisoners’ rights have been the product of Circuit Court decisions with U.S. Supreme Court
rendering a handful of landmark decisions. As noted, because the Courts of Appeal have
differed in their interpretation of the PLRA provisions 54 , it bears investigating whether the
impact of the PLRA on prisoner litigation filing trends is consistent across the Circuits. Thus,
because the Circuits reflect possible variations both in context and statutory interpretation, an
issue for examination is whether the consequences of the PLRA are similar or different in the
U.S. District Courts among the Circuits. 55
The basic research question of whether all individual Circuits experienced a decrease in
Section 1983 lawsuits similar to that observed at the national level is answered using interrupted

Even conceding the arguable claim that the United States has a relatively homogenous culture compared to other
countries, the states comprising virtually every pair of non-adjoining Circuits intuitively seem different. For
example, contrast the Second Circuit (New York, Connecticut) and the Eighth Circuit (North Dakota, South Dakota,
Nebraska, Missouri and Arkansas). Or the Eleventh Circuit (Florida and Georgia) and the First Circuit (Maine, New
Hampshire, Vermont, Massachusetts and Rhode Island).
53
Recent literature on the U.S. Courts of Appeal concludes that doctrinal differences among the Circuits have
declined in the last seventy years. However, differences are believed to remain especially in the area of
constitutional rights (DONALD SONGER, REGINALD S. SHEEHAN, & SUSAN B. HAIRE , CONTINUITY AND CHANGE IN
THE U.S. COURTS OF APPEAL (Ann Arbor: University of Michigan Press) (2000)), which seemingly includes
Section 1983 and the new provisions of the PLRA.
54
Butler supra note 5, at 586
55
Court scholars make a dual assertion on how Circuits manage to influence U.S. District Courts in desired ways.
One element of influence is that the leadership of each Circuit’s bench (i.e., chief judge, and senior judges) will
assign themselves opinion writing opportunities and will author precedent-setting opinions that define the law and
settle issues. Those opinions become cues for the U.S. District Courts to use in resolving cases before them by
applying the law in a way consistent with the Circuit decisions (see, J.W. HOWARD JR. supra note 31). Additionally,
each Circuit is viewed by some scholars as separate, closed system of communication. U.S. District Court judges
look first and primarily to decisions by their respective Circuit judges, who, in turn, look first and primarily to their
respective colleagues. See e.g., Robert Carp, The Scope and Function of Intra-circuit Judicial Communication: A
Case Study of the Eighth Circuit, 6 LAW & SOC’Y REV. 405 (1972). Following the suggestions of this literature,
the current research discusses legal decisions concerning the PLRA by Circuit Courts of Appeals judges. That
discussion follows the analysis of the trends among the Circuits.

time-series analysis (also known as “intervention analysis”). The individual Circuit Court filing
trends are shown in Figures 2-3 to 2-13. Table 2-3 displays the statistical results that confirm the
drop in the rate of prisoner litigation filings observed following the passage of the PLRA is
statistically significant at the Circuit level. 56

Prior to the interrupted time series analysis, the pre-intervention times series for each Circuit was pre-tested for
staionarity using the Augmented Dickey-Fuller test, after the recommended procedure of Francis X. Diebold &
Lutz Kilian, Unit Root Tests are Useful for Selecting Forecasting Models, paper published on the World Wide Web
(http://www.ssc.upenn.edu/~diebold/) (1999). These tests revealed that the time series for each Circuit were
stationary.

Figure 2-3
st

1 Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-4
nd

2 Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-5
rd

3 Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000

PLRA Enacted

Figure 2-6
4 th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-7
th

5 Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-8
6 th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-9
7th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-10
8th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-11
9th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

Figure 2-12
th

10 Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enact ed

Figure 2-13
11 th Circuit Federal Question Section 1983 Case Filings by Month
April 1992 – December 2000
PLRA Enacted

The lone exception is the Fifth Circuit 57 , although the trend in that Circuit was downward before
the enactment of PLRA and has since continued apace. Hence, there is overall consistency in the
sense that, apart from the Fifth Circuit, the PLRA produced both a statistically significant
decrease in the volume and trend of Section 1983 lawsuits per 10,000 state prisoners in all
Circuits.
Although all Circuits (except the fifth) showed a statistically significant drop in prisoner
litigation following enactment of the PLRA, the extent of the decline varied considerably. As
shown in Table 2-3, the percentage change in the average monthly filing rates ranged from a
decrease of 31 percent in the Ninth Circuit to 74 percent in the Second Circuit. The size of the
drop between the pre-PLRA and post-PLRA time periods is measured using the “step” statistic.
A negative and statistically significant step indicates that the PLRA demarcates a fundamental
decrease in the filing rate. The larger the value of the step statistic, the greater the difference in
the trends. As Figure 16 shows, the step statistic is significant in all but the Fifth Circuit and the
size of the step varies from –47.84 in the Eighth Circuit to –5.39 in the Second Circuit.

To understand the unexpected results for the Fifth Circuit, we examined filing patterns in the three states that
comprise this Circuit (Texas, Louisiana and Mississippi) by means of interrupted time series analyses. While
statistically significant declines were noted for both Louisiana and Mississippi, the decline was not significant in
Texas. Since Texas has a much larger prison population than either of the other two states, the pattern noted for this
state tended to define the pattern observed for the entire circuit. It is not clear at the present time why the PLRA did
not impact the filing rate of Section 1983 Lawsuits in Texas.

Table 2-3: Section 1983 Law Suits Per 10,000 Prisoners Before And After PLRA
PRE (April
1992-March
1996)
1,2

Circuit
1
2
3
4
5
6
7
8
9
10
11
National

Average
20.02
26.78
48.96
44.49
48.72
34.81
49.23
87.10
28.88
43.73
44.18
4.08

POST (April 1996 December 2000)
Average
13.54
21.31
27.01
27.64
28.65
18.87
24.03
34.48
20.06
20.49
27.73
2.43

Percent Change:
Pre- to Post-PLRA
-32.37
-20.43
-44.84
-37.86
-41.19
-45.78
-51.19
-60.41
-30.54
-53.16
-37.23
-40.41

Step
-5.94
-5.39
-17.99
-12.11
-0.2 (NS)
-14.06
-18.88
-47.84
-8.66
-22.02
-13.99
-1.36

Standardized
Step
-0.30
-0.20
-0.37
-0.27
0.00
-0.40
-0.38
-0.55
-0.30
-0.50
-0.32
-0.33

1. Circuits are rate of filing per 10,000 prisoners
2. National are rate of filing per 1,000 prisoners
NS: No statistically significant change between the before and after trends

The step statistic confirms that the PLRA has led to a significant decrease in Section
1983 cases in all Circuits (except the Fifth), but that the level of change varies by Circuit. In
addition, this analysis helps clarify whether the extent of change in each Circuit post-PLRA is
related to the volume of litigation pre-PLRA. Perhaps circuits with high pre-PLRA filing rates
(e.g., the Eighth Circuit) had proportionately more filings of procedurally weak lawsuits than
circuits with low filing rates (e.g., the First Circuit), and so would be impacted more profoundly
by the PLRA than circuits with low filing rates. To adjust for the pre-PLRA Section 1983
caseload volume, a standardized measure of change is calculated. This measure—the
“standardized step”—is the ratio of the step to the average pre-PLRA filing rate for each Circuit.
The circuits were ranked according to the size of their standardized step and also by their prePLRA Section 1983 Lawsuit filing rate and the rankings. Spearman’s Rank Order Correlation
was then calculated between the two sets of rankings and found to be non-significant

(Sprearman’s r=.382, p<.247). Thus, the Section 1983 Lawsuit filing rate prior to the PLRA is
not significantly related to the size of the decrease in prisoner litigation post-PLRA. We can
conclude, then, that the PLRA is having a differential impact in the Circuits and is operating in a
more subtle manner than would be expected based on the size of the pre-PLRA filing rate
alone. 58
2.3.3. Manner of Disposition: If the PLRA is operating as envisioned by its authors, we have
certain expectations about the types of cases that will no longer be filed in the federal courts or
that will be summarily dismissed. The Act prohibits inmates from bringing suit until all
available administrative remedies have been exhausted as well as mandating dismissal for claims
found to be frivolous, malicious, or failing to state a claim. Such a change in filing behavior
would also be expected to produce a corresponding change in the pattern of case resolutions in
U.S. District Courts. For example, if the PLRA is serving to distinguish and reduce the number
of nonmeritorious cases relative to meritorious cases, there should be relatively fewer court
dismissals for frivolousness, relatively more cases dismissed for failure to implicate a
constitutional standard, and relatively more trials than before the PLRA. While a complete
analysis of this issue will require systematic investigation at the individual case level, we can
examine AO data on the manner of resolution to gain preliminary insight into the changing
nature of prisoner litigation.
The level of aggregation employed by the USAOC in reporting resolutions of Section
1983 cases permit us to examine changes in dismissal rates, the relationship between early
dismissals and later dismissals (typically) following a motion filed by the defendant, and jury
58

Potential (but currently unmeasured) factors that may explain the size of the standardized step include differences
in (1) the vigor with which the circuits have implemented the provisions of the PLRA; (2) the composition of
Section 1983 Lawsuits at the Circuit level, part icularly with regards to the proportion that could be classified as
frivolous; and (3) the availability of procedural remedies for inmates to resolve their grievances without recourse to
federal courts. In addition, several states have implemented their own versions of the PLRA and such legislation

trial rates. Using the AO data we compare the manner of resolution at the Circuit Court level of
cases resolved in 1995 (the last full year before implementation of the PLRA) with those
resolved in 2000 (the latest year for which resolution data were available). 59 A “test of
proportions” was used to determine whether there was a statistically significant change in the
composition of dispositions pre- and post-PLRA. The test confirms that the manner in which
Section 1983 lawsuits are disposed has changed in consistent and significant ways between 1995
and 2000 in all Circuit Courts. 60
Figure 2-14 shows that outright dismissals have increased proportionately in every
Circuit except the Second (where they decreased) 61 . In contrast, judgments on defendants’
motions (Figure 2-15) have decreased proportionately in every circuit, except the Second (where
they increased). It appears that more cases are being dismissed at earlier stages of the process by
court actions instead of rulings on a defendant’s motion, likely filed at a later stage. This change
should result in decreased workload for U.S. District Courts because dismissed cases typically
require less work than cases involving judgments on defendants’ motions.
If the PLRA is serving to siphon off nonmeritorious cases, then we expect that trials will
account for an increased proportion of resolutions post-PLRA. If some procedurally weak cases
are no longer filed, then the relative share of meritorious cases should rise and we should see an
increase in the trial rate. Figure 2-16 shows that jury trial rates have risen in every Circuit
(except the Sixth, where there was little change), though the proportion of resolutions accounted
for by trials remains small and varies among the circuits. Proponents of the PLRA will likely see

may be associated with larger decreases in Section 1983 Lawsuits. “From 1994 through 1996, 21 states had passed
or were considering legislation similar to the PLRA.” Kuzinski supra note 6 at 375.
59
Aggregate statistics at the national level are shown in Figure 2.
60
P < .05. The two exceptions are the proportion of dismissals in the First Circuit and the proportion of jury trials in
the Sixth Circuit.
61
Circuits with the largest increase in dismissal rates tended to be circuits with the largest standardized step change,
perhaps reflecting that circuits embracing the PLRA most vigorously before filing (as evidenced by their relative
decline in filing rates), continue their vigorous embrace after the case has been filed.

these results as indicative of success. Fewer prisoner lawsuits are being filed, relatively more
cases (presumably procedurally weak) are being dismissed earlier in the process, and relatively
more cases are being resolved by jury trial.
Circuit

Figure 2-14: Percentage of Section 1983 Cases Dismissed
83.6

First*
Second

70.9
71.5

Third
65.0

Fourth

83.2
77.5
77.9
80.1

Fifth
69.5

Sixth
58.4

Seventh

79.3

77.5

69.3

Nineth

79.6

71.6

Tenth

1995
2000

71.7
66.9

Eighth

88.4

78.9

85.1

73.9

Eleventh

85.5

Figure 2-15: Percentage of Section 1983 Cases Disposed by Judgment on Defendant
Motion

First

14.8

9.9

19.4

Second
Third

26.5

Fourth
15.8

Sixth
Seventh

18.0

Nineth

Eleventh

2000

18.6
28.8

18.9

Eighth

39.3

23.7
25.5
29.6

19.0

28.2

13.3
12.3

1995

33.8

21.5

Fifth

Tenth

24.5

13.4

24.4

Figure 2-16: Percentage of Section 1983 Cases Disposed by Jury Verdict
0.47

First

1.66
1.01

Second
Third
0.39

Fourth

2.41

0.69
0.96

Fifth

2.55
1.25
1.24
1.15

Sixth*
Seventh

0.53

Nineth
0.00

1995
2000
3.07

1.33

Eighth

Tenth

3.66

0.91

2.49

0.91

0.40
0.72

Eleventh

1.71

2.4. Conclusion
The Prisoner Litigation Reform Act has produced a significant reduction in the number of
prisoner lawsuits coming to the federal courts. There are simply fewer cases filed under Section
1983 of the U.S. Code in US District Courts than there were before the provisions of the PLRA
took effect. This paper documents that the decrease in Section 1983 litigation, which occurred
throughout the U.S. Circuit Courts of Appeal, is striking in both magnitude and scope. The Fifth
Circuit is an exception, where a decrease in Section 1983 filings occurred before the new law
was adopted and continued after the law was passed.
Proponents of the PLRA will point to this dramatic change in the volume and trend of
prisoner litigation as evidence of the Act’s success. A two-thirds reduction in filings means
prisoner lawsuits have dropped from one in every six federal cases in 1996 to about one in
eighteen in the year 2000. Clearly, the goal of reducing the share of federal judicial workload
devoted to prisoner litigation has been achieved. Moreover, supporters of the PLRA can justify
the rationale for the decrease: most cases filed pre-PLRA did not meet basic procedural
36

requirements and were resolved by court dismissal. The problematic nature of these lawsuits was
clarified in the findings of Hanson and Daley62 . Their extensive examination of prisoner
lawsuits filed just prior to the PLRA show few able to withstand scrutiny and pass the basic,
existing requirements of suing someone acting under color of state law without immunity over an
issue cognizable under Section 1983 that rises to the level of a deprivation of their constitutional
rights.
Yet, individuals with less sanguine views of the PLRA will no doubt note that, at this
point, we don’t know the nature of the lawsuits no longer filed or summarily dismissed through
the new procedures authorized by the PLRA. The chief concern is that the new provisions such
as those related to filing fees and three-strikes will preclude filing of the meritorious as well as
the frivolous. Proponents have not shown that the elimination of frivolous lawsuits has been the
source of the drop in Section 1983 filings. Looking to the available data is suggestive but
incomplete.
On the surface, there is evidence of little change when the manner of disposition for
prisoner litigation is compared pre- and post-PLRA. The proportion of cases dismissed outright
or following judgment on defendants’ motions remains at about 95 percent. It appears prisoners
continue to file procedurally weak lawsuits in large numbers and, in response, they continue to
be dismissed by the U.S. District Courts.
However, going inside the manner of disposition numbers, offers some solace to those
concerned that the PLRA has not helped meritorious claims in their battle for recognition. If
operating as intended, the new PLRA provisions allow the federal courts to deny complaints that
in the past were accepted only to be dismissed for having fundamental flaws. The AO
disposition data show that outright dismissals have proportionately increased in every circuit

Hanson & Daley supra note 25

(except the Second) and judgments on defendants’ motions have proportionately declined in
every circuit (except the Second). It would appear that more prisoner requests to proceed are
being immediately denied (and dismissed) prior to payment of the filing fee. The end effect is
likely more judicial time to gauge and resolve the meritorious cases. This interpretation of
improved judicial review receives some support from the finding that jury trial rates more than
doubled in most Circuits.
This paper goes a long way in informing the affect of the PLRA on the volume, trend,
and outcome of prisoner litigation. And focuses attention on directions for future inquiry. The
dramatic change in volume and trend highlights the need to better understand the implementation
process of the PLRA and the roles of key constituencies that stood to benefit most from the
legislation (U.S. District and Circuit Court judges, states attorneys general, and state and local
correctional officials). The apparent success of the PLRA in accomplishing the primary
objective of reducing the volume of section 1983 litigation in federal courts is remarkable given
Congress’ previous unsuccessful efforts to regulate prisoner lawsuits.
A comprehensive assessment of the change in the manner of case resolution pre- and
post-PLRA demands a case- level examination of its effect on the composition of Section 1983
lawsuits docketed and resolved. Have the cases changed in subject matter of the issues? Which
cases are resolved quickly under the PLRA? And which ones go to trial? Is the number of
prisoners who prevail at trial after the PLRA larger, smaller, or about the same as before the
PLRA? Answers to these questions are ultimately needed to assess the fairness and “efficiency”
of the PLRA in eliminating procedurally weak cases but not impeding the flow of meritorious
cases into federal courts. Until these questions are addressed-through case level inquiry-the final
chapter on the PLRA cannot be written.

Chapter 3: The Antiterrorism and Effective Death Penalty Act of
1996 Meets Habeas Corpus
3.1. Introduction
A seminal value of American jurisprudence is that no one should be convicted
wrongfully of a crime that they did not commit. The U. S. Constitut ion enshrines this principle.
According to Article I, Section 9, Clause 2 of the Constitution, “(t)he Privilege of the Writ of
Habeas Corpus shall not be suspended unless when in Cases of Rebellion or Invasion the Public
safety may require it.”
In support of this value, federal courts in the American federal system of government
review the validity of state court convictions and sentences. Have the state courts erroneously
convicted and incarcerated a criminal defendant? Recent advancements in forensic technology
(most notably DNA testing) demonstrate dramatically that wrongful convictions are an
unfortunate, if infrequent, reality in our justice system. 1
Prisoners generally first challenge their convictions by filing appeals and post-conviction
relief in the intermediate appellate and supreme court in the state where they were convicted.
After exhausting the state appellate process, an inmate then can file petitions for writs of habeas
corpus in U. S. District Courts claiming that his or her U. S. constitutional rights were violated
and that the state courts did not correct these errors. The constitutional deprivations include
actions by the police (e.g., coerced confession), prosecution (e.g., knowing use of perjured
testimony) or the trial court process (e.g., denial of effective assistance of counsel) .2 Therefore,
a prisoner petitions a federal court to reverse or modify the state trial court decision. In a real
1

J. Liebman, Rates of Reversible Error and the Risk of Wrongful Execution. 86 JUDICATURE, 78-82 (2002).
There is a parallel process for federal prisoners to challenge their convictions for violations of their constitutional
rights. However, they technically do not file petitions for writs of habeas corpus. They file motions to vacate, set
aside or correct their sentences. The scope of this article is limited to state prisoners and writs of habeas corpus
because the overwhelming majority of criminal convictions are rendered in state courts and the overwhelming
majority of post-conviction challenges arise from state prisoners.
2

sense, the prisoner seeks to relitigate issues that previously were examined by state courts.
Indeed, one of basic legal doctrines of habeas corpus is that the petitioner must first exhaust all
state remedies before submitting a petition to a federal court. 3
U. S. District Courts can dismiss, deny or grant habeas corpus petitions. A petition denied
on the merits can then be filed with the U. S. Court of Appeals. And if that appeal is denied, a
challenge to that decision can be lodged with the U.S. Supreme Court. 4
Stakes in habeas corpus petitions are extraordinarily high. A prisoner who succeeds in
gaining a favorable decision from a federal court stands to be released from confinement, gain a
new trial, or have a sentence remanded for a new sentencing hearing. A federal judge’s granting
of a prisoner’s petition and issuance of a writ of habeas corpus ordering a prisoner’s release or
another proceeding countermands all previous state decisions. On the other hand, while the
federal habeas corpus process is underway, validity of a state trial conviction remains uncertain.
Because more than one federal court might be involved in this process, postponement of validity
extends for a considerably long period of time.
Therefore, it is understandable that federal habeas legal policies and procedures have
been part of a developmental process and that the issues revolving around the grounds or
procedural requirements for the filing of these cases are never fully settled. The history of
habeas corpus reform has been one of continuous efforts to either loosen or tighten the
requirements. The U.S. Supreme Court has both expanded and limited the criteria under which
3

In place since the decision in 1886 of the U.S. Supreme Court in Ex parte Royall, the exhaustion doctrine is
grounded in the principle of comity and the understanding that state courts, like federal courts, are required to
uphold and enforce constitutional requirements. See M. O’Neill, Esq., On Reforming the Federal Writ of Habeas
Corpus, 26 SETON HALL L. REV.1493-1547 (1996).
4
A state prisoner can file a challenge directly to the U.S. Supreme Court by submitting an application for a writ of
certiorari. However, the likelihood that the Supreme Court will accept this application under its discretionary review
authority is small because of the large number of other cases comp eting for attention. In fact, this situation is part of
what prompted the Supreme Court to decree that habeas corpus petitions could be filed in lower federal courts (e.g.
Fay v. Noia, Townsend v. Sain, and Sanders v. United States).

petitions can be filed in federal court. Moreover, the federal courts have tried to recommend
changes to the law through administrative committees. However, what is striking about the
nature of the most recent change is that the source of the new provisions of habeas corpus law is
the U. S. Congress’s direct involvement. Passage of the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA) marks the first time that the national legisla tive branch of
government has introduced substantial change in an effort to siphon off petitions because they
are not timely or do not meet other filing standards. Because every modification to habeas
corpus law is worth noting, this Congressional initiative is doubly important because it represents
the introduction of ideas from one branch of government into what is the business of another
branch.
The purpose of the current research is to address two questions. Did the AEDPA have its
intended effect of reducing the number of habeas corpus petitions filed by state prisoners in U.S.
District Courts? Or, did habeas corpus petitions continue to be filed at the same or greater rates
despite the allegedly restrictive provisions of AEDPA? To achieve this objective, we use the
statistical technique of interrupted time series analysis, where the enactment of AEDPA
separates the filing of habeas corpus petitions into a before and an after period. Graphic displays
of the before and after trends in habeas corpus petitions are presented, along with quantitative
measures of whether, and how, AEDPA altered the before and after trends in a substantial
manner.
We review four key important aspects of the habeas corpus landscape to put the
quantitative analysis in context: (1) national historical trends in habeas corpus petitions, (2)
competing legal perspectives on habeas corpus, (3) AEDPA provisions and a quick look at their
possible effect and (4) previous court administrative studies on habeas corpus. Each of these

areas offers a basis for anticipating the nature of the statistical results and interpreting the
observed patterns.
3.2.

Background

3.2.1. National Historical Trends In Habeas Corpus Petitions : The U.S. Supreme Court has
been the primary engine of doctrinal developments. 5 A substantial departure from past legal
policy making occurred in 1995 with the passage of the Antiterrorism and Effective Death
Penalty Act (AEDPA). With the passage of this Act (Pub. L.104-132), the U.S. Congress became
a prime mover in shaping habeas corpus. The new provisions took effect in 1996.
Prior to AEDPA, modern habeas corpus doctrine and litigation evolved in two distinct
phases: (1) increased availability of federal habeas corpus relief to state prisoners during the
Warren Court era (1953-1969) 6 and (2) retreat and retrenchment from an expansive federal role
in habeas litigation under the Burger and Rehnquist Courts, 1970 to the present 7 The two
distinct philosophies promulgated by the Supreme Court during these phases had a very evident
effect on the number and rate of filing of all types (including death penalty) of habeas corpus
petitions by state prisoners in U.S. District courts, as shown in Figure 3-1.

M. O’Neill, Esq., Supra note 3, at 1493-1547.
The modern American history of habeas corpus begins with the Supreme Court decision in Brown v. Allen, which
expanded the scope of the writ from a narrow focus on jurisdictional error to claims of constitutional error brought
by prisoners in state custody. That decision empowered District Courts to redetermine the merits of constitutional
issues arising in the courts of state criminal prosecutions even if the state has corrective procedures and the
conviction was proper according to those procedures.
7
M. Hartman and J. Nyden, Habeas Corpus and the New Federalism after the Anti-terrorism and Effective Death
Penalty Act of 1996, 30 J. MARSHALL L. REV., 337-387 (1997).
6

Both the number of petitions filed and the rate of filing (number of petitions per prison
population) beginning in 1963 increased sharply concomitantly with the Fay v. Noia, 8 Townsend
v. Sain,9 and Sanders v. United States10 decisions of the Warren Court. Hartman and Nyden11
point out that, “In the aggregate, these cases cut through “the procedural thicket of state comity
and state concerns about finality and mandated federal relief from state court decisions that
violated the Federal Constitution or the Bill of Rights.” In other words, these decisions widened
the opportunities for habeas corpus litigation by state prisoners in District Courts.

25,000

Figure 3-1: Habeas Corpus Petitions Filed by State Prisoners
in District Courts, 1941-2000

20,000

Fay v. Noia
Sanders v. US

Number of Petitions

Townsend v. Sain
Stone v. Powell

Teague v. Lane

Brown v. Allen

15,000
30
10,000
20
5,000

Number of Habeas Corpus Petitions

19
41
19
44
19
47
19
50
19
53
19
56
19
59
19
62
19
65
19
68
19
71
19
74
19
77
19
80
19
83
19
86
19
89
19
92
19
95
19
98

Year

372 U.S. 391 (1963), overruled by Keeney v. Tamayo-Reyes.
372 U.S. 293 (1963)
10
373 U.S. 1 (1963).
11
Hartman & Nyden, supra note 7, at 340.
9

Petitions Filed per 1,000 Prisoners

AEDPA
Habeas Corpus Petition Filing Rate

The idea of expanded opportunities was met with dismay in some quarters. Even the
Supreme Court decision establishing the principle of federal court review of state court
convictions in Brown v. Allen was considered an invitation for the filing of an unmanageable
habeas corpus caseload. Associate Justice Robert Jackson, in his separate opinion in Brown v.
Allen, complained bitterly that judicial modification of habeas corpus jurisdiction resulted in
“floods of stale, frivolous, and repetitious petitions [that] inundate the docket of the lower courts
and swell our own.”12 However, as O’Neill 13 points out, the “flood” that Justice Jackson
referred to consisted of only 541 petitions filed in 1952, the year preceding Brown v. Allen.
Jackson’s metaphor of a flood of work seems to be both an exaggeration of the situation in the
1950s and a prescient claim of what happened in the next few decades. For example by 2000,
there were 21,345 petitions. Many observers likely agree with O’Neill’s 14 sentiment that
prisoner petitions undermine confidence in the criminal justice system, waste precious judicial
resources, and, as a result, may diminish the amount of time spent reviewing potentially
meritorious claims.15
To understand the trend in habeas corpus petitions more fully, the number of petitions
needs to be examined in conjunction with the rate of prisoners or the number of prisoners. Are
the absolute numbers and the rates increasing or decreasing together? Or are there different

Brown, 344 U.S. at 536 (Jackson, J., concurring).
O’Neill, supra note 3
14
See id, at 1577
15
A reasonable question to ask is whether concern over the number of petitioners should be based exclusively on
filing patterns. Or, does the “problem” of too many petitions require information on the resolution of dispositions of
petitions? Hanson and Daley found that the courts granted only one percent of the habeas corpus issues raised in
state prisoner petitions and remanded only another one percent to the state courts for further proceedings in their
study of a random sample of approximately 2,337 petitions resolved during 1992 in 18 U.S. District courts in nine
selected states. See, e.g. ROGER A. HANSON & HENRY W.K. DALEY, BUREAU OF JUSTICE STATISTICS,
FEDERAL HABEAS CORPUS REVIEW: CHALLENGING STATE COURT CRIMINAL CONVICTIONS, BJS
DISCUSSION PAPER, NCJ 155504(1995). Sixty-three percent of the issues were dismissed either by the court or
by the petitioner. Virtually all other issues were denied on their merits. Hence, filing patterns are a critical, and
perhaps the first element to understand the effects of AEDPA on habeas corpus petitions but, ultimately, information
on filing needs to be complemented with data on dispositions.
13

trends for each one? Certainly concern over whether there are too many petitions requires
information on trends in filing rates. Looking at Figure 3-1, the rapid increases in the number
and the rate of habeas corpus petitions filed reached their respective peaks in 1970, 16 the first
year after the end of the Warren Court, and generally decreased throughout the 1970s. The
decrease in filing rates extended from 1971 until 1995. In contrast, while the number of petitions
filed, like the filing rate, generally decreased between 1971 and 1980, after 1980 the number
increased almost every year through 2000.
As a result, it is difficult to specify the true consequences of efforts by the Burger and
Rehnquist courts to set more restrictive conditions on the filing of petitions. The decisions made
by those courts occurred after the decrease in filing rates began in 1971. Nevertheless, some
observers believe that several decisions contributed in some way to the continuation of the
decreasing trend. 17 Decisions believed to have had some effect in reducing the filing rates
include Stone v. Powell, wherein state prisoners seeking federal habeas corpus relief on Fourth
Amendment grounds of illegal search and seizure would not be granted relief as long as state
courts provided the prisoners with the opportunity for full and fair litigation of this claim. Other
decisions include Rose v. Lundy, petitions can be dismissed if they contain any unexhausted
claims; Engle v. Issac, prisoners must bring a constitutional claim to federal court after state
procedural default to demonstrate cause and actual prejudice before relief is granted; Marshall v.
Lonberger, federal courts need to conclude that state court findings lacked “fair support” in the
record, rather than simple disagreement with the state court, before state factual determinations

In 1970, habeas corpus petitions accounted for slightly more than ten percent of the total civil filings in U.S.
District Courts.
17
V. FLANGO, HABEAS CORPUS IN STATE AND FEDERAL COURTS, Williamsburg, VA: National Center
for State Courts (1994).

are rejected; and Teague v. Lane, “new rules” of constitutional law are not applicable to earlier
habeas petitions pending review (with two exceptions).
Yet, despite the difficulties in pinning down the effects of these decisions on habeas
corpus filing rates, many observers criticized the decisions for placing restrictions on the filing
process. Tabak and Lane 18 for example, bemoaned the Rehnquist Court’s efforts to limit
application of the “Great Writ of Liberty”, asserting that “since Chief Justice Rehnquist joined
the Court, habeas corpus has been rendered more complex, more time-consuming, and
substantially more arbitrary, capricious, and unfair.” Such commentary is part of an ongoing
debate over the use of habeas corpus that warrants some attention because it provides competing
views on the direction of changes in habeas corpus doctrine.
3.2.2. Competing Legal Perspectives: When one examines commentaries on the Warren,
Burger and Rehnquist Courts, they reveal an ongoing tension between two competing values: the
necessity for a means to correct errors in state trial court convictions versus the need for
“finality” of state court convictions. Those favoring the expansive use of habeas corpus promote
the use of the federal writ of habeas corpus as the most certain way to correct errors in state trial
court convictions, regardless of the time and resources consumed. From this perspective, state
courts by themselves simply will not correct all of the reversible errors that occur, but the federal
courts will be able to correct some of the errors that the state courts missed. Consequently,
barriers to the filing of petitions should be limited. 19 Some adherents of this perspective argue
that this position is justified because alternative remedies, including state post-conviction

R. Tabak and J. Lane, Judicial activism and legislative “reform” of federal habeas corpus: A critical analysis of
recent developments and current proposals, 55 ALB. L. REV., 1-95 (1991).
19
L. Yackle, Explaining Habeas Corpus, 60 N.Y.U.L. Rev. 991 (1985).

remedies, are either deficient or not within a prisoner’s access. 20 If anything, the process should
be altered by appointing attorneys to represent indigent prisoners, most certainly in capital
cases. 21
Those favoring finality hold that the process of federal habeas corpus review should not
take endlessly to complete because the validity of the state criminal justice process and its
imposition of punishment are suspended while the review is ongoing. 22 Additionally, those
favoring “finality” hold that some errors in the legal process are inevitable and that the courts
efforts are better directed toward managing the processes that lead to errors rather than
attempting to eliminate every error. From this perspective, time and resources are important
considerations when deciding how far to pursue the objective of minimizing state trial court
errors. In support of this position, advocates often cite the very limited number of habeas corpus
petitions that are granted. 23 Yet, despite contrasting views on efforts to limit habeas corpus case
filings, the legal perspectives seldom discuss exactly the extent to which the number of filing
rates of habeas corpus petitions will be affected. In fact, the critical commentaries on AEDPA
reveal a similar lack of specificity on the likely consequences of the legislation’s provisions.

Curtis R. Reitz, Federal Habeas Corpus: Post Conviction Remedy for State Prisoners, 108 U. PA. L. Rev.
(1960).
21
Alexander Rundlet, Student Comment, Opting for Death: State Responses to the AEDPA’s Opt-in Provisions and
the Need for a Right to Postconviction Relief, 1 J. CONSTITUTIONAL L. 661 (1998).
22
See e.g., Paul M. Bator,Finality in Criminal Law and Federal Habeas Corpus for State Prisoners. 76 HARV. L.
Rev. 441 (1963); Daniel J. Meador, Straightening out Federal Review of State Criminal Cases. 44 OHIO ST. L. J.
273-285 (1983); James D. Hopkins, Federal Habeas Corpus: Easing the Tension between State and Federal
Courts, 44 ST. JOHN’S L. REV. 660 (1970)
23
O’Neill, supra note 3.

3.2.3. AEDPA – An Overview of Intended and Actual Results: The most recent clash
between the expansive and the finality perspectives occurred over the drafting, enactment and
implementation of the Antiterrorism and Effective Death Penalty Act (AEDPA). Key provisions
of AEDPA are as follows:
•

•

The provision that a claim presented in a second or successive habeas corpus application
that was presented in a prior application shall be dismissed.

•

and, consequently, reflect an endorsement of the finality perspective. For example, the one-year
filing deadline promotes finality by reducing the time between the exhaustion of state remedies
and the filing of a petition. Because no standard time frame existed before the AEDPA, some
prisoners took years after exhaustion before filing a petition. After the AEDPA, the one-year
deadline might reduce the number of potential late filers. In addition, restrictions on successive
petitions should encourage prisoners to consolidate their issues into a single petition thereby
further reducing the number of filings.
While there is general agreement that the intended effect of AEDPA is to decrease the
number of petitions, the expansive and finality perspectives will obviously differ on the
desirability of these results. Those in the finality camp welcome the reductions, but to those
holding to the expansive perspective 24 , any reduction in the volume of petitions resulting from

See e.g., Deborah L. Stahlkopf, A Dark Day for Habeas, ARIZ. L. REV., 1114 (1998)

AEDPA would occur at the expense of justice. Blumberg25 stated that if “fairness, federalism
and finality” were once the guiding principles of habeas 26 , then “the AEDPA ushers in a new era
where finality reigns supreme.” Despite the certainty of these opinions, these critical
commentaries offer few estimates of the effect of AEDPA. However, a quick look at actual
filing rates of federal habeas corpus petitions in the nation’s District Courts reveals a dramatic
“spike” occurring in April 1997. An undeniable increase in habeas corpus petitions occurred on
the first anniversary of the legislation’s one- year statute of limitations when prisoners could file
petitions.

Figure 3-2: National Habeas Corpus Monthly Filing Rate Before and After AEDPA
April 1992 - December 2000
All U.S. District Courts

Rate per 10,000 prisoners
45

AEDPA Enacted

40
35
30
25
20
15
10
5

19
92
0
19 4
92
07
19
92
1
19 0
93
0
19 1
93
0
19 4
93
0
19 7
93
10
19
94
0
19 1
94
04
19
94
0
19 7
94
1
19 0
95
0
19 1
95
04
19
95
0
19 7
95
1
19 0
96
01
19
96
0
19 4
96
07
19
96
1
19 0
97
01
19
97
0
19 4
97
07
19
97
1
19 0
98
0
19 1
98
04
19
98
0
19 7
98
10
19
99
01

Year/Month

D. Blumberg, Habeas Leaps from the Pan and into the Fire: Jacobs v. Scott and the Antiterrorism and Effective
Death Penalty Act of 1996. 61 ALB. L. Rev. 557 (1997)
26
B. Friedman, Failed Enterprise: The Supreme Court’s Habeas Reform, CAL. L. REV. 545 (1995) (quoting
Withrow v. Williams, 507 U.S. 680, 697 (1993)).

In April 1997, many state prison inmates apparently initiated habeas corpus proceedings
out of concern they might be forfeiting their opportunity to file such suits in the future if they did
not meet this deadline. As a result of this apparent “rush to file,” the total number of habeas
corpus petitions filed in 1997 was 30 percent higher than the level in 1996. The unanticipated
spike in filings lasted only one month (April 1997) but afterwards filings seemed to be more
numerous than before the spike.
Two types of prisoners likely contributed to the phenomenon occurring in April 1997: (1)
prisoners convicted prior to AEDPA implementation but who had not exhausted state remedies
and (2) prisoners convicted prior to AEDPA and who had exhausted state remedies before the
implementation of AEDPA. Concerning the first group, some prisoners apparently filed on the
AEDPA’s one-year anniversary date in 1997 even though they had not exhausted the state
process. We believe that they did so because of their possible confusion over basic rules (e.g.,
failure to understand that they should not file a habeas petition, even under the AEDPA, until
they satisfy the exhaustion requirement). Since most prisoners have no attorney to inform them
of the meaning of pertinent Congressional laws on the complex subject of habeas corpus, they
were taking no chances that they would loose their opportunity to file a petition.
The petitions filed by this group will be dismissed because of failure to exhaust.
However, the goal of finality is not achieved immediately in regard to this group since they can
file (at least) a second petition after exhaustion has been achieved. 27 Even though AEDPA
places limits on the number of successive petitions, the Supreme Court has held that a petitioner
can raise any claim in a petition subsequent to a petition dismissed for failure to exhaust

Finality might be achieved in the case of same prisoners who had either never initiated state remedies or had
abandoned them at some point. Because state remedies operate on a clock, prisoners might not be able to go back
and exhaust state remedies if they missed state time deadlines or failed to comply with other state procedures.

remedies. 28 Hence, subsequent petitions could contribute conceivably not only to a spike
phenomenon, but they could contribute to an increasing trend in the filing after AEDPA. 29
Concerning the second group, we believe that prisoners convicted before 1996 that had
exhausted state remedies but not yet filed a habeas petition contributed to the spike in filings.
Prior to the enactment of AEDPA, there was no limitation on when a prisoner could file an
original action for habeas corpus relief in federal court 30 . In the view of many, this lack of time
limits thwarted the goal of finality31 . Associate Justice Powell, who had chaired the so-called
“Powell Commission,” which searched for ways to reform federal habeas practice, observed:
Another cause of overload of the federal system is [28 U.S.C.] § 2254, conferring federal
habeas corpus jurisdiction to review state court criminal convictions. There is no statute
of limitations, and no finality of review of state convictions. Thus, repetitive recourse is
commonplace. I know of no other system of justic e structured in a way that assures no
end to the litigation of a criminal conviction. Our practice in this respect is viewed with
disbelief by lawyers and judges in other countries. Nor does the Constitution require this
sort of redundancy. 32
The time limits for filing established by AEDPA applied to the prisoners convicted
before 1996 who had exhausted state remedies but not yet filed a habeas petition (see Glaid,
2001, Court of Appeals, the 11th Circuit on this subject). 33 This group would include an
accumulation of prisoners who might have exhausted state remedies as far back as 1990.
Presumably these late filers were serving very long prison terms and would have had to file
petitions no later than April 1997 to beat the one-year time limit.

See Slack v. McDaniel, 120 S. Ct. 1595, 1604-06 (2000).
Hanson and Daley reported that among the 63 percent of all habeas petitions dismissed, 57 percent are dismissed
because of failure to exhaust. See Supra note 15, at 17. Consequently, one can estimate that about 36 percent of all
habeas petitions filed in U.S. District Courts before AEDPA failed to exhaust state remedies. At the upper limit,
then, about a third of the petitions filed each year before 1996 could be filed again, if the petitioners are still
incarcerated.
30
Hartman & Nyden, supra note 7.
31
O’Neil, supra note 3
32
Lewis Powell, Address Before the American Bar Association Division of Judicial Administration (Aug. 8, 1982).
33
In the event a habeas petitioner’s conviction predated the enactment of the AEDPA, he or she is entitled to a
“grace period” of one year from the date of enactment, i.e., until April 23, 1997 to file his or her federal habeas
petition excluding any time during which a “properly filed” application for collateral relief was “pending” (see
Goodman v. United States, 151 F.3d 1335, 1337 (11th Cir. 1998).
29

Interestingly, the spike phenomenon observed for petitioners (Figure 2) occurred for the
particular subgroup of petitioners who had received death penalty sentences. According to
AEDPA, prisoners challenging death penalty convictions and sentences were required to meet a
180-day deadline for filing a petition after exhausting state remedies. 34 The most striking change
in the number of habeas corpus petitions filed by prisoners sentenced to death occurred in April,
1997, the first anniversary of AEDPA, as shown in Figure 3-3.35 Apparently, this particular set
of prisoners was seeking to meet the same one-year deadline that applied actually to prisoners
with sentences of imprisonment. 36
Figure 3-3: Number of Habeas Corpus Petitions Filed Monthly
by State Prisoners Sentenced to Death
April 1992-December 2000

100
90
AEDPA Enacted

70
60
50
40
30
20
10
0
19
92
0
19 4
92
0
19 7
92
10
19
93
0
19 1
93
0
19 4
93
0
19 7
93
1
19 0
94
0
19 1
94
0
19 4
94
0
19 7
94
1
19 0
95
0
19 1
95
0
19 4
95
0
19 7
95
1
19 0
96
0
19 1
96
0
19 4
96
0
19 7
96
1
19 0
97
0
19 1
97
0
19 4
97
0
19 7
97
1
19 0
98
0
19 1
98
0
19 4
98
07
19
98
1
19 0
99
0
19 1
99
04

Number of Filings

Year/Month

28 U.S.C.A. [sections} 2261 (b).
The number of petitions rather than the rate of filing is presented because the population of prisoners with death
sentences is elusive.
36
There is a second noticeable spike in the number of petitions filed by prisoners with death sentences that occurs
on April, 1996, the month that AEDPA first went into effect. It appears that some inmates with death sentences
were taking no chance of having their petitions dismissed given their considerable stakes in the U.S. District Courts’
handling of their cases. However, the filing rate in April, 1996 is appreciably less than the rate reached in April,
1997, which coincides with the anniversary of the one-year time deadline for all other petitioners occurred.
35

To some observers of Figure 3, the absence of a spike corresponding to October 1996, six
months after the implementation of AEDPA and coincident with the 180 day limit on filing
habeas corpus death penalty petitions might be surprising. Presumably, such a spike would have
been created by a “rush” of death row inmates who had exhausted state remedies but had not yet
filed federal petitions. However, this particular provision applies only if the state offers to
provide legal assistance to death-row petitioners who cannot afford privately-retained counsel. 37
Because states have not rushed to provide this assistance, the 180-day time limit for the filing of
habeas death penalty petitions does not apply anywhere in the U.S. 38
Thus, Figures 3-1, 3-2, and 3-3 indicate that, at least on the national level, AEDPA has
not had its intended effect of reducing the number of habeas corpus petitions filed in District
Courts by state prisoners. Interestingly, both the “expansive” and “finality” perspectives seem to
have misjudged the consequences of the law since both sides expected filings to decrease as a
result of AEDPA. To understand why the expected results were not obtained and to get a better
understanding of the forces actually shaping habeas filing trends, we next examine another
relevant body of literature, court administration studies. This literature describes particular
variables that influence filing rates. 39

28 U.S.C.A. [sections] 2261 (b).
Thomas (1998) argues that federal judges, who are charged with the responsibility of determining whether a state
has met the requirements of providing counsel to prisoner petitioners with death penalty sentences , are resisting
certifying states as being in compliance because of the discipline that it imposes on them. A. Thomas, Penalty Box,
50(8) NATIONAL REVIEW, May 4, 1998, at 40-41. AEDPA requires U.S. District court judges to render a
decision on a capital habeas petition within 180 days of its filing. The Courts of Appeals were given 120 days to
hand down their rulings after the reply brief was filed.
39
The legal perspective and the court administration literature do have similarities in their basic subject matter.
Some observers have noted that the wall of separation between them is odd given that they sometimes pursue the
same questions. For example, Anne Voights writes: “It is worth noting the few empirical studies have been done
despite the fact most of the hotly contested issues in the debate over habeas corpus involve empirical questions.” See
Narrowing the Eye of the Needle: Procedural Default, Habeas Corpus, and Claims of Counsel, 99 COLUM. L.
REV. 1109 (1999). A general objective of this article is to encourage a closer nexus between doctrinal and
quantitative studies, although the main research questions this essay seeks to address were not formulated for that
purpose.
38

3.2.4. Court Administration Studies On Habeas Corpus Petitions : A number of court
administration studies have been devoted to understanding the trends observed for the filing of
habeas corpus petitions. 40 Several of these studies provide primarily descriptions of trends in
processing and filing of habeas petitions 41 (e.g., Scalia, 1997), while others 42 discuss the possible
causal mechanisms influencing filing rates. One study43 provides a formal assessment of the
impact of AEDPA on national habeas corpus petition filing rates. Using interrupted time series
analysis, Scalia 44 concluded “The 1996 Antiterrorism and Effective Death Penalty Act appears to
have resulted in an increase in the number of habeas corpus petitions filed by State prison
inmates.” Scalia clearly implicates AEDPA as the agent behind the increased national habeas
corpus filing rates since April 1996, but he does not specify what and how aspects of AEDPA
produced this effect.
Collectively, court administration studies have identified three variables that underlie the
filing of habeas corpus petitions though they are rarely discussed in the legal literature: (1) the
direct (but lagged) relationship between the number of state prisoners and the number of
petitions filed, (2) the direct relationship between the number of prisoners sentenced to periods
of long-term incarceration (e.g., seven years or longer) and the likelihood of petitions being filed,
and (3) conditions under which state prisoners can file multiple petitions. Each of the three

David Shapiro, Federal Habeas Cropus: A Study in Massachusetts, 87 HARV. L. REV. 321 (1973), Paul
Robinson, AN EMPIRICAL STUDY OF FEDERAL HABEAS CORPUS REVIEW OF STATE COURT
JUDGMENTS, (U.S. Department of Justice: Washington, D.C.) (1979), Richard Faust, Tina J. Rubenstein & Larry
Yackle, The Great Writ in Action: Empirical Light on the Federal Habeas Corpus Debate, 18 N.Y.U. REV. L. &
SOC. CHANGE 649-710 (1990-1991), Victor Flango, supra note 17, Hanson & Daley, supra note 15, John Scalia ,
PRISONER PETITIONS IN THE FEDERAL COURTS, 1980-96, NCJ 164615, Washington, D.C.: Bureau of
Justice (1997) and Scalia, PRISONER PETITIONS FILED IN U.S. DISTRICT COURTS, 2000 WITH TRENDS
1980-2000, NCJ 189430, Washington, D.C.: U.S. Department of Justice, Office of Justice Programs, Bureau of
Justics Statistics, 2 (2002), and Fred Cheesman, Roger Hanson and Brian Ostrom, A Tale of Two Laws: The U.S.
Congress Cconfronts Habeas Corpus Petitions and Section 1983 Lawsuits, 22 LAW & POL’Y, 89-113 (2000).
41
Scalia (1997), supra note 40.
42
Cheesman, et al, supra note 40.
43
Scalia (2002), supra note 40.
44
See id.

variables suggests how the filing of habeas corpus petitions might be influenced independently
and more influentially than by the provisions of AEDPA.
First, an examination of the number of habeas corpus petitions filed each year from 1941
to 2000 indicates that trends are shaped by the number of inmates in state prisons in previous
years, as shown in Figure 3-4. Specifically, the number of habeas corpus petitions in a given
year is closely associated with the number of prisoners approximately six years previously. 45
This lagged relationship coincides with the time that it takes a prisoner to exhaust state remedies
and then to submit a petition to a U.S. District Court. The average time from the date of
conviction to the filing of a petition is slightly over five years. 46
The fact that the relationship between the number of petitions filed and number of state
prisoners is lagged also suggests that manipulating the length of the lag will impact the number
of petitions filed. Shortening the amount of time between conviction and the filing of a habeas
corpus petition in District Court will cause an increase in the number of filings while lengthening
the lag will cause a decrease. Thus, both the number of state prisoners and the average amount
of time between conviction and the filing of a petition in District Court will influence the number
of petitions filed at any given point in time.
These results provide fairly strong grounds for the proposition that the size of the prison
population drives the absolute number of petitions. This finding suggests that a continuing
increase in prison population size will inhibit the intent of AEDPA to reduce the number of
petitions.

Cross correlations indicated that the strongest relationship between prison population and the number of habeas
corpus filings in a given year was obtained when prison population was lagged by six years. Cross-correlation
coefficients are special types of correlation coefficients used to establish the strength of the relationship between
variables measured with time series data. Cheesman, Hanson, & Ostrom, Supra note 42.
46
Hanson & Daley, supra note 15.

Figure 3-4: Habeas Corpus Petitions
and State Prisoner Population
1941-2000

25,000

AEDPA

1,400,000

Habeas Corpus Petitions

Brown v Allen

Townsend v Sain
Fay v Noia
Sanders v US

Stone v Powell

1,000,000
Teague v. Lane

15,000

800,000
600,000

10,000

5,000

400,000

State Prisoner
Population

200,000
Habeas Corpus
Petitions

19
41
19
44
19
47
19
50
19
53
19
56
19
59
19
62
19
65
19
68
19
71
19
74
19
77
19
80
19
83
19
86
19
89
19
92
19
95
19
98

Year

A second variable concerns the propensity of state prisoners to file petitions.
Specifically, prisoners sentenced to long periods of incarceration (because of convictions for
violent offenses, three strikes, or mandatory minimums) are more likely to file a habeas petition
than other prisoners. This proposition is supported by Hanson and Daley’s 47 finding that
approximately 62 percent of petitioners were convicted violent offenders and slightly more than
20 percent had received strictly life sentences (life with and without the possibility of parole, life
and an additional number of years).
Additional support for this proposition is found when the habeas corpus filing rates are
juxtapositioned with the changing composition of the state prisoner population. Habeas corpus
filing rates decline during periods when the proportion of state prisoners that are violent
offenders decreases (e.g., 1980-1990) and rise when the proportion increases (e.g., 1996-2000),

Hanson and Daley, supra note 15

State Prisoner Population

1,200,000
20,000

as shown in Figure 5. This finding suggests that any effects of AEDPA will be attenuated by the
increasing changes in the percentage of prisoners with long-term sentences of incarceration. 48

Not only is the percentage of violent offenders in prisons increasing, but their sentences have become longer,
increasing the chances that they will file a habeas corpus petition. According to statistics from the National
Corrections Reporting Program (NCRP), the average time served by male first releases from state prisons increased
from 37 months in 1993 to 45 months in 1999. Data from the NCRP is available from the Inter-University
Consortium for Political and Social Research (ICPSR) through the University of Michigan
(http://www.icpsr.umich.edu).

Figure 3-5: Percentage of State Prison Population by Offense Type and Habeas Corpus
Filing Rate per 1000 State Prisoners, 1980-2000

70.0%
60.0%
Violent

Percentage

50.0%
Habeas Corpus Filing

40.0%
Property

30.0%
20.0%
Drug

10.0%
Public Order

19
80
19
81
19
82
19
83
19
84
19
85
19
86
19
87
19
88
19
89
19
90
19
91
19
92
19
93
19
94
19
95
19
96
19
97
19
98
19
99
20
00

0.0%

Year

Concerning the likelihood that prisoners will file multiple petitions, AEDPA does not
prohibit prisoners from contesting each of the multiple convictions that resulted in their
confinement as a “habitual offender” or for “three strikes”. The extent to which prisoners choose
to challenge each of their multiple convictions will influence both the number of petitions filed
and the filing rate. If the number of state prisoners convicted on the basis of three strikes or
habitual offender statutes increases, an increase in the number of petitions filed and the filing rate
should result. 46
Second, we note that AEDPA’s restrictions will not apply to many petitions. Based on
past research by Hanson and Daley47 , there are very few petitions that are dismissed on grounds
that they are successive. Only three percent of petitions examined in a previous national study
were dismissed because they were successive, as shown in Table 3-1.
46
47

Hanson and Daley, supra note 15
See id

Table 3-1: Reason for Dismissal of Habeas Corpus Issues Percent of
Issues
Failure to exhaust State remedies
57%
Procedural default
12
Failure to meet court deadlines or court rules
7
Issues not cognizable
6
Abuse of writ
5
Government’s motion to dismiss granted
3
Prisoner not in custody
3
Jurisdictional bar
1
Petition is moot
1
Other reasons (such as prisoners moves to dismiss)
3
Number of issues
3,068
Source: Roger A. Hanson and Henry W.K. Daley (1995) Federal
Habeas Corpus Review: Challenging State Convictions. Discussion
Paper. Bureau of Justice Statistics, Washington, D.C.

A third reason why AEDPA’s provision on successive petitions might not have its
intended effect lies in the fact that most petitions are dismissed for failure to exhaust state
remedies. Fifty-seven percent of the dismissals or approximately 33 percent of all petitions filed
are filed prematurely. This sizable body of petitions could be re-filed after completing the
exhaustion process and not be subject to the new criteria on the banning of successive petitions.48
As a result, there should have been an appreciable number of prisoners who first filed in
1993, 1994 or 1995 who could have filed a subsequent petition after the AEDPA went into effect
in 1996. This group includes prisoners whose petitions were dismissed because they had
exhausted some but not all of the issues in their first petition. The subsequent petitions would be
added to those from prisoners who were filing their initial petition. Hence, prisoners filing
48

Randal S. Jeffrey, Successive habeas corpus petitions and Section 2255 motions after the Antiterrorism and
Effective Death Penalty Act of 1996: Emerging procedural and substantive issues, 84 MARQ. L. REV., 43-140
(2000).

successive petitions (after an earlier dismissal for failure to exhaust) should contribute to an
increase in the filing rate of petitions after passage of AEDPA.
Court administration studies are useful in drawing attention to variables that shape a
prisoner’s decision to file a petition quite independent of even the most restrictive formal
provisions of the law. Three variables identified in court administration studies provide a basis
for expecting increases in the number and filing rate of habeas corpus petitions after AEDPA.
As the number of state prisoners increases and, more importantly, as the number of state
prisoners sentenced to long-term incarceration for the conviction of violent offenses increases,
the number of habeas corpus filings should increase. Additionally, the extent to which prisoners
file multiple petitions will also affect the number of petitions filed and the filing rate. Multiple
petitions by prisoners can be filed by prisoners who challenge each of the multiple convictions
that resulted in their confinement as a “habitual offender” or for “three strikes”. Finally,
subsequent petitions can be filed by prisoners whose previous petitions were dismissed because
of failure to exhaust.
However, the national trends in the number of petitions filed and the filing rate just
examined may not be representative of the trends in the individual District Courts. AEDPA
might have a greater impact in some circuits of the U.S. Court of Appeals than others.
Differences among circuit courts regarding the composition of caseloads 49 (and the rate at which
litigants challenged decisions subject to appeal50 have been previously documented. 51 It is

Lawrence Baum, Sheldon Goldman, and Austin Sarat, The Evolution of Litigation in the Federal Courts of
Appeals: 1895-1975, 16 LAW & SOC’Y. REV. 291 (1981).
50
J. W. HOWARD, JR., COURTS OF APPEAL IN THE FEDERAL JUDICIAL SYSTEM (Princeton: Princeton
University Press) (1981).
51
Howard points out that by virtue of jurisdiction and administrative independence, no two circuit courts are alike.
See id. The characteristics of each region of the country within the jurisdiction of a particular circuit tend to be

possible that some circuits interpreted AEDPA differently and these differences were
communicated to their respective District Courts. As a result, the nationa l patterns might not
hold true uniformly across District Courts. To understand the consequences of AEDPA on a
regional basis, the current research examines the rate of filing of habeas corpus petitions by state
prisoners in District Courts 52 within each of eleven numbered circuits.
3.3. Data and Methodology
3.3.1. Data: Data on the number of habeas corpus petitions filed by state prisoners in District
Courts during April 1992 to December 2000 (including those filed by inmates sentenced to
death) were obtained from the Research and Statistics Division of the Administrative Office of
the U.S. Courts. They are organized into monthly increments to capture the occurrence of both
short-term and long-term changes in filing patters and to provide a sufficient number of data
points to conduct the analysis.
3.3.2. Methodology: The trends in habeas corpus petitions are displayed graphically and
measured by the number of petitions filed per 10,000 state prisoners. Prison population size is an
essential denominator to use in calculating a filing rate because the number of prisoners is the
pool from which potential filers arise. Filing rates are measured at the level of District Courts
grouped together by the circuit court that has jurisdiction over them. Consequently, eleven basic
before and after graphs (Figures 3-6 to 3-16) correspond to the eleven numbered circuit courts.

reflected in the business of each court. Despite the adoption of uniform rules of appellate procedure in 1968, the
power of circuit courts to define subsidiary rules lends surprisingly little standardization to internal decision-making
or administrative practice. Howard also maintains that regionalism also affects the operation of these courts. One
thing that these courts have in commo n, however, is that habeas corpus petitions and prisoner lawsuits account for a
significant proportion of their overall caseloads.
52
The District of Columbia Circuit of the U.S. Court of Appeals was excluded from the analysis due to the small
number of petitions filed.

This level of analysis avoids the limitations of a strictly national examination, and averts the
unmanageable problem of trying to see patterns among nearly 100 District Courts.
To assess the impact of AEDPA on the rate of filing of habeas corpus petitions (i.e., the
number of petitions filed per 10,000 prisoners) at both the national and circuit level, interrupted
time series analyses were cond ucted 53 .
representation of an intervention,

This statistical approach generates a mathematical

and assesses how well the representation describes the actual

time series data. Interrupted time series is conducted in three stages: (1) Fitting an ARIMA
model to the pre- intervention time series (in the present case, habeas corpus filings before
enactment of AEDPA), (2) modeling the effect of an intervention, usually either as a persistent
change (increase or decrease) in level called a “step”55 or a temporary change (increase or
decrease) in level called a “pulse”, 56 often occurring over a single time period, and (3) combining
the pre- intervention model and the intervention model into a single model of the entire time
series and assessing the fit of this model to the actual time series. The test of significance for the
intervention factor is used to assess the impact of the intervention. The time series data must
either be stationary57 or be made stationary (usually by “differencing” 58 ) before the interrupted

See e.g., D. MCDOWALL, MCCLEARY, E. MEIDINGER, and R. HAY, INTERRUPTED TIME SERIES.
(Newbury Park, CA: Sage Publications, Inc.) (1980).
54
An “intervention” is a known, non-random event that is thought to have caused a change in the time series. In the
present case, the non-random event would be the effective date of AEDPA, April 1, 1996.
55
A “step” intervention implies that an event has caused a permanent shift in the “level” of a time series, i.e., a
permanent shift in the mean of the time series.
56
A “pulse” intervention implies that an event has caused an abrupt, temporary shift in the level of a time series.
57
A time series is stationary if the statistical properties (for example, the mean and the variance) of the time series
are essentially constant overtime.
58
Non-stationary time series can sometimes be transformed into stationary time series by first differencing. The
first differences of the time series values y1 , y2 ,…, yn are zt = yt - yt-1 where t = 2,…, n. Sometimes it is necessary to
take second differences (the first differences of first differences) of the original time series and very rarely higher
order differencing is required to make a time series stationary.

time series can be performed. The Augmented Dickey-Fuller test59 was used to test for
stationarity. 60
Three models were examined to see how closely they fit the monthly filing rates of
habeas corpus petitions for District Courts organized by circuit and nationally. The first two
models are step models. Both indicate that there was a permanent change in the filing rates after
enactment of AEDPA. However, one model suggests that the change occurred immediately
upon implementation of AEDPA and the other suggests that the change occurred one year after
AEDPA implementation. The third model indicates that any change was temporary as a onetime pulse increase. Each model is described as follows:
(1) Bureau of Justice Statistics (BJS) Model. A step model beginning April 1996,
the month of AEDPA’s enactment. This model suggests a permanent change in
the rate of filing, commencing with AEDPA’s immediate implementation. This is
the model developed by Scalia (2002) to test the impact of AEDPA on a national
level.
(2) Delayed Step Model. This is a step model but it begins in April 1997, one year
after AEDPA’s enactment. This model was suggested by the pattern of filings
observed in Figures 6-16. The difference between the BJS model and the Delayed
Step model is the timing of the intervention, the former commencing in April
1996 and the latter in April 1997. The Delayed Step Model suggests that the rate
of filing changed significantly and permanently one year after AEDPA’s
enactment.

The Augmented Dickey-Fuller Test is a test for “unit roots” in order to identify the appropriate degree of
differencing (first, second, and so on) required to make the time series stationary. A time series is said to be
integrated of order d (denoted by I(d)) (d=1, 2, …) if after the time series has been differenced d times it becomes
stationary. A special case is when d=1, called a “unit root process”. The Dickey-Fuller test is one of the most
common used tests for a unit root. D.A. Dickey & W.A. Fuller, Distribution of the Estimators for Autoregressive
Time Series with a Unit Root, 74 J. AMER. STAT. ASN. 427 (1979). The Dickey-Fuller test is based on the
regression of the observed variable on its one-period lagged value, sometimes including an intercept and time trend.
In an important extension of Dickey and Fuller, Said and Dickey show that the Dickey-Fuller t-test for a unit root,
which was originally developed for AR (autoregressive) representations of known order, remains asymptotically
valid for a general ARMA (autoregressive moving average) process of unknown order. E. Said & David A. Dickey,
Testing for Unit Roots in Autoregressive Moving Average Models of Unknown Order, 71 BIOMETRICA 599
(1984). This t-test is usually called the Augmented Dickey-Fuller (ADF) test.
60
In response to the results from the Augmented Dickey-Fuller test, the time series for Circuits 5,7,10, and 11 were
first differenced, the standard corrective action for non-stationary time series.

(3) Pulse Model. This model suggests a change occurred in April 1997, one year
after AEDPA’s enactment, and lasted only one month. This model was also
suggested by the pattern of filings observed in Figures 6-16. The pulse models
suggests a one shot change followed by a resumption of the trend that existed
before the enactment of AEDPA.
To determine which model provided the best fit to the time series for each circuit and also
nationally, the log likelihoods, Akaike Information Criterion (AIC), and the Schwartz Baysian
Criterion (SBC) were calculated. 61 Our methodology contrasts with the only other quantitative
assessment of the affect of AEDPA on habeas corpus petition filing rates 62 . Scalia considered
only whether the BJS model, but not the other two models, provided a significant fit to the
national data. Scalia also did not examine District Court patterns by circuit.
3.4. Results and Discussion
A visual inspection of the data is a basic way to examine the effect of AEDPA on the
habeas filing rate trends. At first glance, the re appears to be little deviation from the national
trend, particularly with respect to the distinctive spike in the filing rate occurring in April 1997,
as shown in Figures 6-16. Hence, the spike is a general phenomenon, evident in the habeas filing
rates shown in every figure. The filing rate trends appear to be relatively stable and unchanging
prior to the spike but differences emerge during the period after the spike. District Courts in
some circuits (e.g., the U.S. Court of Appeals for the 2nd Circuit) tend to return to a stable rate of

Log likelihoods, Akaike Information Criterion (AIC), and the Schwartz Baysian Criterion (SBC) are all measures
of goodness-of-fit. The goodness-of-fit of a statistical model refers to its capacity to reproduce the data. The log
likelihood ratio is the probability of obtaining the observed results, given the parameter estimates of the calculated
ARIMA model. Since the likelihood ratio is a small number less than one, it is customary to use –2 times the log of
the likelihood ratio (-2 X LLR) as a measure of how well the estimated model fits the data. The Akaike information
criterion (AIC) and the Schwartz Bayesian criterion (SBC) are also commonly used measures of goodness-of-fit.
They measure how well the model fits the series, taking into account that a more elaborate model is expected to fit
better. Generally speaking, the AIC is for autoregressive models while the SBC is a more general criterion. The
model with the lowest AIC or SBC is the best.
62
See supra note 43.

filing (though the rate after the spike is often higher than the rate before the spike) while others
(e.g., the U.S. Court of Appeals for the 9th Circuit) seem to display an increasing rate of filing.
Visual inspection of the data nationally and by each circuit provides scant support for the
BJS model of habeas filing rates increasing as soon as AEDPA was implemented in April 1996.
The first sign of any impact of AEDPA appears to be the spike in filings that occurred in April
1997. However, visual inspection alone is insufficient to determine which model provides the
best fit to the patterns of habeas filing rates observed nationally and by circuit. Do the
consequences of AEDPA fit the pattern of rates commencing with AEDPA’s enactment in April
1996 (BJS model) or is the most common pattern an increase commencing one year after
AEDPA’s enactment in April 1997 (Delayed Step model)? Or, is the more common pattern a
one-time spike in filings occurring in April 1997 that is followed by a return to the beforeAEDPA trend (Pulse model)?

Figure 3-6: Habeas Corpus Petitions Filed Monthly Per 10,000 State Prisoners in District
Courts in the Court of Appeals for the 1st Circuit, April 1992 - December 2000
40

30
25
20
15
10
5
0
19
92
04
19
92
08
19
92
12
19
93
04
19
93
08
19
93
12
19
94
04
19
94
08
19
94
12
19
95
04
19
95
08
19
95
12
19
96
04
19
96
08
19
96
12
19
97
04
19
97
08
19
97
12
19
98
04
19
98
08
19
98
12
19
99
04
19
99
08
19
99
12
20
00
04
20
00
08
20
00
12

Number of Petitions per 10,000 Prisoners

AEDPA Enacted
35

Year/Month

19
92
0
19 4
92
0
19 7
92
1
19 0
93
0
19 1
93
0
19 4
93
0
19 7
93
10
19
94
0
19 1
94
0
19 4
94
0
19 7
94
1
19 0
95
0
19 1
95
0
19 4
95
0
19 7
95
1
19 0
96
0
19 1
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07

Figure 3-7: Habeas Corpus Petitions Filed Monthly per 10,000 State Prisoners in District
Courts in the Court of Appeals, 2nd Circuit, April 1992 - December 2000

60
AEDPA Enacted

Figure 3-8: Habeas Corpus Petitions Filed Monthly per 10,000 State Prisoners in District
Courts in the Court of Appeals, 3rd Circuit, April 1992 - December 2000

35
AEDPA Enacted

Figure 3-9: Habeas Corpus Petitions Filed Monthly in District Courts
in the 4th Circuit Per 10,000 State Prisoners
April 1992 - December 2000
35
AEDPA Enacted
30

19
92
04
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92
08
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92
12
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08
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12
20
00
04
20
00
08
20
00
12

Figure 3-10: Habeas Corpus Petitions Filed Monthly in District Courts
in the 5th Circuit Per 10,000 State Prisoners
April 1992 - December 2000
35
AEDPA Enacted
30
25
20
15
10
5

19
92
04
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92
08
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08
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12
20
00
04
20
00
08
20
00
12

Figure 3-11: Habeas Corpus Petitions Filed Monthly in District Courts
in the 6th Circuit Per 10,000 State Prisoners
April 1992 - December 2000

50
AEDPA Enacted

45
40
35
30
25
20
15
10
5

19
92
0
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0
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0
19 7
98
10

Figure 3-12: Habaes Corpus Petitions Filed Monthly in District Courts
in the 7th Circuit Per 10,000 State Prisoners
April 1992 - December 2000
50
AEDPA Enacted
45
40
35
30
25
20
15
10
5

19
92
04
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04
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08
19
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12

Figure 3-13: Habeas Corpus Petitions Filed Monthly per 10,000 State Prisoners in District Courts
in the Court of Appeals, 8th Circuit, April 1992 - December 2000
100
AEDPA Enacted
90
80
70
60
50
40
30
20
10

Figure 3-14: Habeas Corpus Petitions Filed Monthly per 10,000 State Prisoners in District Courts
in the Court of Appeals, 9th Circuit, April 1992 - December 2000

AEDPA Enacted

35
30
25
20
15
10
5

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04
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00
0
20 8
00
12

Figure 3-15: Habeas Corpus Petitions Filed Monthly in U.S. District Courts
in the 10th Circuit Per 10,000 State Prisoners
April 1992 - December 2000
50
AEDPA Enacted
45
40
35
30
25
20
15
10
5

Figure 3-16: Habeas Corpus Peitions Filed Monthly in U.S. District Courts
in the 11th Circuit Per 10,000 State Prisoners
April 1992 - December 2000
50

AEDPA Enacted

45
40
35
30
25
20
15
10
5

For every circuit and also nationally, the BJS Model provided the poorest fit because
there was very minimal change in the filing rates during the first year of AEDPA. Pulse models
provided superior fits nationally and for District Courts within most circuits (1st , 2nd, 5th , 6th , 7th ,
8th , 10th , and 11th ). The Delayed Step Model provided a superior fit in the other (3rd, 4th , and 9th ).
In other words, a permanent increase in the level of the habeas corpus filing rate occurred after
April 1997 in District Courts in three circuits, while the pattern nationally and in eight circuits is
best described as a one-time spike occurring in April 1997 with basically the same trend in
filings occurring before and after the spike.

Table 3-2: Which Alternative Statistical Model Best Fits the Data on
the Patterns of Filing Rates Before and After AEDPA?
Goodness of Fit Measures*
BJS Model
508.9
597.3
664.9
526.5
489.8
484.9
539.2
556.3
722.5
566.6
649.8
583.8

Delayed Step Model
483.7
591.1
640.7
511.7
460.1
471
524.1
545.8
723.1
537.7
645.9
562.2

Pulse Model
390.9
582.1
628
519.4
467.8
467.7
450.5
502.2
604.5
552.8
626.8
482.7

*The numbers in the table are based on an application of the Akaike
Information Criterion (AIC). The smaller the value, the closer the fit.
Either or both of the Delayed Step and Pulse Models have smaller values
than the BJS model for every grouping of District Courts, with the slight
exception of those within the U.S. Court of Appeals for the 8th Circuit.
The AIC value for the BJS model is smaller (722.5) than the value for the
Delayed Step Model (723.1). However, the Pulse Model remains the best
fit (604.5).
72

The District Courts in the Court of Appeals for the 3rd, 4th and 9th Circuits deserve
attention because the quantitative results indicate that filing rates increased to a higher plateau
after enactment of AEDPA. Instead of being reduced in accordance with legislative intent, the
rate of filing increased to a new level. Not only was there a dramatic spike increased but the
spike was followed by a rate that surpassed the level before AEDPA. This result leads to the
next question, which of the District Courts experienced the greatest step increase?
Table 3-3 provides information on the Delayed Step Model for the courts where it
provided the best fit to the data. The size of the increase between the before AEDPA and after
AEDPA time periods is measured using the “step” statistic. A positive and statistically
significant step indicates that a fundamental and permanent increase in the filing rate has
occurred, beginning one year after AEDPA’s enactment. The value of the step statistic indicates
the amount of change between the filing rates before and after AEDPA.
Table 3-3:

District Courts in which Circuits Experienced the Greatest Change
in Filing Rates After AEDPA?

Average Filing Rate
Average Filing Rate
Circuit April 1992-March 1997 April 1997-December 2000
3rd
17.81
20.92
th
4
11.49
15.83
9th
14.74
21.23

Percent
Standardized
Change: Step Statistic
Step
17.5%
3.21
0.18
37.7%
4.38
0.38
44.0%
6.29
0.43

The step statistic confirms that the AEDPA is associated with a statistically significant
increase in filings one year after its implementation in District Courts with three particular
circuits, but that the level of change varies. For example, the step statistic is greater for U.S.
District Courts in the Court of Appeals, 9th Circuit (6.29) than for those in the Court of Appeals,
4th Circuit (4.38) or Court of Appeals, 3rd Circuit (3.21). However, the filing rates varied before
the AEDPA. For example, did the District Courts in the Court of Appeals, 9th Circuit have the
73

greatest change (44 percent increase) because its average rate (14 percent) before AEDPA was
lower than these in the Court of Appeals, 3rd Circuit (17.81)? To take these differences into
account, a standardized measure of change is calculated. This measure—the “standardized
step”—is the ratio of the step to the average before AEDPA filing rate. On the basis of the
standardized step, the largest relative increase in levels occurred in the District Courts in the
Court of Appeals, 9th Circuit (.43) and 4th Circuit (.38), while the change was less substantial in
the Court of Appeals, 3rd Circuit (.18).
The more commonly observed pulse models also deserve particular attention. Of special
interest is the question of which group of District Courts experienced the greatest pulse increase?
Or was there uniformity in how far the pulse increased? To provide a comparable measure of the
relative impact of AEDPA, the size of the “spike” is standardized by dividing the size of the
spike by the average filing rate before AEDPA, as shown in Table 3-4. Though all eight circuit
groupings and the national picture showed a statistically significant increase in filing rates one
year after the enactment of the AEDPA, the extent of the increase varied considerably. The
largest relative spikes (comparing the size of the spike to the grand average, minus the spike)
Table 3-4: District Courts in Which Circuits Experienced the Greatest Pulse Increase After AEDPA?
Grand
Average
(minus
Spike/Grand
Circuit Average Before Filing Rate Magnitude of Spike Average After Filing Rate spike) Pulse Average
National
15.61
39.85
19.61
13.43 18.76
2.97
st
1
9.96
30.42
13.64
11.52 18.34
2.64
nd
2
11.08
59.79
19.43
14.61 44.26
4.09
th
5 *
16.92
28.13
21.68
18.94 8.75
1.49
th
6
12.38
41.04
16.28
14.03 24.65
2.93
th
7 *
18.34
40.93
17.79
18.11 21.1
2.26
th
8
25.44
89.99
22.66
17.35 59.1
5.19
th
10 *
20.89
42.90
21.72
21.24 23.36
2.02
th
11 *
19.11
45.81
20.32
19.62 28.05
2.33
*Time series was first-differenced.
74

were observed in the Court of Appeals, the 8th and 2nd Circuits. The relative sizes of the spikes
in the other circuits (and nationally) were roughly similar with the exception of the Court of
Appeals, 5th Circuit, which had a smaller spike.
The current research has demonstrated three important relationships between AEDPA
and the filing of habeas corpus petitions. First, the results confirm the basic proposition that
AEDPA did not produce or contribute to a reduction in petitions. No set of U.S. District Courts
in any circuit demonstrates a decrease in filing rates after AEDPA.
Second, we find no support for the claim made by other observers 61 that AEDPA
“caused” an increase in habeas corpus petition filing rate. We could not discern an increase in
filing rates coincident with the immediate implementation of AEDPA either nationally or in any
circuit. Further, an increasing trend did not occur in District Courts for every circuit.
Third, reality fits two patterns. For District Courts in most Circuits, a one-time spike
occurs in filing, followed by a return to the filing rates that existed before AEDPA. And, in three
of the circuits (3rd, 4th , and 9th ) District Courts experienced not only a spike increase, but
witnessed a step- like increase to a higher plateau in filing rates.
From our perspective, these two patterns – called delayed step and pulse models –
generally corroborate the ideas and propositions in the court administration literature. An
increase in prison population in the first half of the 1990s, an increase in violent offenders
throughout the 1990s, the opportunity for multiple petitions despite the tightening of restrictions
on successive petitions, all played a role in maintaining or increasing the habeas corpus filing
rates.

See Scalia(2002) supra note 40

3.5. Conclusion, Policy Implications, and Future Inquiry
3.5.1. Summary: AEDPA represents a legislative attempt to resolve the ongoing tension
between the finality and expansive perspectives on the use of habeas corpus by state prisoners in
federal courts in favor of finality. It is a rare foray by Congress into the complexities of habeas
corpus doctrine with the intent to limit the filing of habeas corpus petitions by state prisoners in
federal courts. Prior to AEDPA, federal courts had attempted to limit filings by means of
administrative rules and a series of decisions that set more restrictive conditions on the filing of
petitions. The effectiveness of the court’s efforts in this regard is somewhat subject to dispute
but it is clear the filings continued to increase despite those initiatives.
If the current research results were reduced to a single and succinct proposition, it likely
would be that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) did not
produce an expected decrease in federal habeas corpus petitions. This finding, which is
supported by systematic data from an examination of trends in the rates at which petitions are
filed, calls into question the effectiveness of the legislation's key provisions that had prompted
many acute observers to attack the Act for being unduly restrictive. Those provisions include the
setting of time deadline lines for filing, placement of tighter controls on the acceptability of
successive petitions and the explicit encouragement to federal courts to give greater deference to
state courts and their appellate review of convictions and sentences. Thus, the goal of AEDPA
remains unrealized.
However, there is no evidence that AEDPA "caused" the filing rate to increase in District
Courts in the Court of Appeals, the 3rd, 4th , and 9th Circuits, which would be just the opposite of
the intentions of the framers of the new law. Instead, we believe that the explanation for the
increases lies with a growing subgroup of prisoners who are more likely to file a petition than the
76

"average" prisoner. Simply stated, prisoners convicted of violent offenses, usually with lengthy
sentences are more likely to file because they remain in prison after the elapsed number of years
required to complete exhaustion of state remedies (usually five to six years). Because an
increasing proportion of the prison population nationally was occurring just as AEDPA was
enacted, the effect of AEDPA was attenuated by the countervailing force of an increasing
proportion of likely filers.

3.5.2. Policy Implications : Results from the current inquiry have at least four broad
implications for both the understanding of habeas corpus and the reform of this area of law. The
most fundamental lesson to be learned is that state criminal justice system policies influence the
number of state prison inmates who are likely to avail the mselves of the federal habeas review
process. Incarceration and the length of custodial sentences are products of state decisions. As a
result, the pool of the most likely filers can increase (or decrease) independently of procedures
established through judicial doctrine or legislative provisions. For example, as the composition
of prison population changes with an increasing percentage of violent offenders, the filing rate
should increase accordingly. Moreover, the strength of the social forces contributing to this
increase should not be underestimated. It is not an exaggeration to say that state criminal justice
policies today reflect years of development. Hence, it is not surprising that the Congress’s rare
attempt at habeas policy making did not ha ve its intended effect.
A second lesson is that the contemporary trend in state incarceration policies portends a
continuing increase in the time to be taken to complete the habeas review process. Both the
process of exhausting state remedies and an initial District Court review take longer for violent
offenders who tend to have longer sentences than other offenders. We know, for example, that
direct appeals in state intermediate appeals courts of homicide convictions take considerably
77

longer to resolve than an appeal of a less serious offense. This is true for virtually all state
appellate courts that have been examined for their degree of timeliness. Hence, the proportion of
inmates convicted of violent offenses increases, the elapsed time from conviction to the filing
and resolution of a federal habeas corpus petition should be expected to increase. Hence, if the
Congress decides to revise AEDPA and modify key provisions, it will be confronting a more
daunting challenge to achieve finality than it faced in 1995.
A third lesson to be learned is that any intervention to manipulate the rate of filing of
habeas corpus petitions, legislative or otherwise, should be based on a thorough understanding of
the forces that influence this rate. A focus on the forces that previous research demonstrated as
influencing the habeas corpus filing rate might have contributed to the design of more effective
provisions than those enacted by AEDPA.
A fourth lesson to be learned revolves around the limitations of aggregate data on habeas
corpus petitions. All petitions are not equivalent. It is important, if not essential, to have
information on the resolution of petitions, not just information or the number of petitions filed.
Petitions can be granted, denied, or dismissed for a variety of reasons. Unless we know more
specifically how petitions are resolved, estimating how and why legal provisions will affect
habeas corpus petitions will be hazardous and incomplete. Aggregate data, as used in the current
inquiry, can illuminate the impact of AEDPA in the broadest sense, but more specifically
detailed information concerning the dynamics of the legislation’s effects on the prisoners’
decisions on whether, when and how they will challenge their convictions requires individual
level data.

3.5.3. Future Inquiry: To fully understand the connection between legal provisions and the use
of the habeas corpus process by prisoners, it will be necessary to move beyond the aggregatelevel data examined in this study to an examination of petitions filed by individual prisoners.
Only data measured at this level will be able to answer questions such as:
(1) Has the proportion of all habeas corpus petitions that are first petitions
changed since AEDPA’s implementation?
(2) Has there been a change in how habeas corpus petitions are resolved (for
example, dismissed, denied on the merits, granted on the merits, or remanded
to state courts) since AEDPA’s implementation?
(3) Have the reasons for dismissal of habeas corpus petitions (e.g., failure to
exhaust, procedural default, failure to meet court deadlines or court rules,
issues are non-recognizable, abuse of writ, government’s motion to dismiss
granted, prisoner not in custody, successive petition, jurisdictional bar, petition
is moot, prisoner moves to dismiss, and failure to meet a one-year filing
deadline under AEDPA) changed since AEDPA’s implementation?
(4) Has there been a change in the proportion of petitioners whose most serious
offense is a violent crime (rather than burglary/theft, drug sale or possession,
weapons, or some other offense) since AEDPA’s implementation?
(5) Has the amount of time between conviction and the filing of a habeas corpus
petition changed since AEDPA’s implementation?
(6) Has there been a change in the proportion of petitioners that are challenging
the first, second, or third conviction under some form of a habitual offender
statute since AEDPA’s implementation?
If we knew what the composition and status of habeas corpus petitions we could begin to
sort out what aspects, if any, of the habeas corpus litigation dynamics changed after AEDPA. To
measure possible changes, the information on the composition and status of petitions needs to be
captured at different points in time after AEDPA. Previous research by Hanson and Daley62
provides a benchmark against which these variables can be compared to gauge the extent of the
change. Their research assessed the nature of habeas corpus petitions with the same or similar
categories for the first five variables mentioned above. Only the sixth variable is a new indicator.
62

Hanson & Daley, supra note 15

Hence, it seems quite feasible to gain a clearer sense of what has transpired in reaction to
AEDPA by replicating previous work.

Chapter 4: Conclusion
The U.S. Congress took an extraordinary, if not unprecedented, step in 1996 by enacting
two policies to regulate the use of the legal system by state prisoners. They were the Prisoner
Litigation Reform Act (PLRA) and Antiterrorism and Effective Death Penalty Act (AEDPA).
The PLRA dealt with lawsuits filed by state prisoners challenging the conditions of their
confinement, which are commonly called Section 1983 cases. The AEDPA focused on
applications for writs of habeas corpus filed by prisoners challenging the validity of their
convictions and sentences, which commonly are called habeas corpus petitions.
Because these two types of legal actions are cases filed in and resolved by federal courts,
the evolving doctrines governing prisoners’ legal actions traditionally have been developed by
federal judiciary led by the U.S. Supreme Court. Congressional involvement in this area of
public policy, which is a striking departure from the past, calls attention to these laws.
Additionally, the provisions of the legislation involves choices based on fundamental values,
such as the extent to which prisoners have constitutional rights while incarcerated, the amount of
time and resources that should be devoted to determining whether prisoners are correctly (or
wrongfully) convicted, and the degree to which Federal courts should supervise state correctional
institutions and state courts. As a result, these two laws are part of an ongoing national debate on
important criminal justice issues and policy. Moreover, these two laws are important to
understand because of their consequences.
Both the proponents and the critics of these laws expected the number of cases brought
by prisoners in federal courts to decrease as a result of their provisions. Yet, whereas Section
1983 lawsuits decreased sharply in U.S. District Courts within the jurisdiction of every Circuit of
the U.S. Court of Appeals after the introduction of PLRA, no glimmer of a decrease in habeas

corpus petitions occurred in District Courts within any Circuit’s jurisdiction after implementation
of AEDPA.
We conclude this report by offering some lessons to be learned from the consequences of
this dual set of policy initiatives. From our perspective, we believe that there are five lessons
that emerge from what happened to prisoner litigation after the introduction of PLRA and
AEDPA
The first lesson is that intrinsic difference between a lawsuit and an application for a writ
put Congress in a much better position to influence the rate of filing Section 1983 cases than
habeas corpus petitions. Every area of civil law involves procedural requirements that plaintiffs
must meet to have their complaints accepted by courts (i.e., docketed, placed on track or calendar
and set for the first court event). As a result, Congress was able to introduce new requirements
via PLRA (e.g., filing fees, exhaustion of state remedies) that ultimately proved effective.
Complaints without payment of fees and exhaustion of state remedies were not accepted. In fact,
these requirements likely deterred some prisoners from filing complaints because they knew they
could not meet or were unwilling to satisfy those requirements.
No such filing requirements that might screen out cases exist for habeas corpus petitions.
Courts must accept applications for writs of habeas corpus petitions and docket them. Then,
courts can decide whether to grant, deny or dismiss the petitions. However, Congress was in no
position to intervene in the courts’ decisions to accept habeas corpus petitions. Hence, the
Congress faces a more daunting challenge in producing a reduction in habeas corpus petitions
than it experienced in reducing Section 1983 cases.
A second lesson, which follows from the first one, is that the new exhaustio n
requirements incorporated in the PLRA and the pre-existing exhaustion doctrine governing

Federal habeas corpus are not equivalent. Exhaustion of state remedies for Section 1983
lawsuits and Federal habeas corpus petitions are similar in name only.
The essential difference in the meaning and application of the two exhaustion
requirements is that PLRA prohibited the acceptance of Section 1983 complaints by prisoners
and docketing them as court cases if administrative (correctional) grievance procedures had not
been exhausted. In contrast, prisoners could have their habeas corpus petitions accepted by
federal courts even if they had failed to exhaust state remedy (i.e. state appellate court review
and state habeas corpus or post conviction remedies) processes. Federal courts might quickly
dismiss petitions that had failed to exhaust state remedies, but there was nothing in AEDPA that
prohibited the acceptance of such petitions. Consequently, the two sets of exhaustion
requirements constituted two quite contrasting criteria. This distinction between them
contributed to the relative success of PLRA because its provisions permitted Federal courts to
reject prisoner complaints which, in turn, reduced the number of Section 1983 lawsuits. Hence,
until and unless the exhaustion doctrine for habeas corpus is modified in some way, Congress
will have to find another way to see appreciable decreases in the number of petitions.
A third lesson is that the nature of the prisoner population plays a role in inhibiting the
efforts to reduce the number of habeas corpus petitions, but plays no similar role in efforts to
reduce Section 1983 cases. Simply stated, the composition of the correctional population
independently affects the filing of habeas corpus petitions. For example, violent offenders have
a much greater incentive to file a habeas petition than nonviolent offenders with shorter
sentences. As a result, there is an inherent aspect of the prison population that provides a
countervailing force to the provisions of AEDPA. Moreover, as the prison population becomes
increasingly dominated by offenders subject to long-term incarceration, the efforts to restrict

habeas petitions will be confronted by an even stronger opposing force. Hence, unless the
Congress takes into account the varying probability of offenders to file habeas corpus petitions,
and develops measures that will overcome the strong motivation and incentive of some prisoners
to file petitions, the effects of procedural requirements to prevent the filing of petitions will be
attenuated.
A fourth lesson is that the success of PLRA and AEDPA cannot be judged by
examination of only the number of prisoners’ cases that are filed. The disposition of the cases
also are essential to understand and evaluate the two sets of legislation. For example, consider
some of the questions that need to be addressed about habeas corpus petitions and AEDPA. Has
the number and type of legal issues changed after the introduction of AEDPA? Did the AEDPA
change the time taken to resolve petitions? Is the percentage of outcomes favorable to prisoners
higher, lower, or the same after AEDPA? Are the grounds for dismissing petitions different or
about the same after AEDPA?
Without answers to these questions, the number of petitions before and after AEDPA is a
very blunt measure of the legislation’s performance. Moreover, this criterion fails to provide any
clues on the dynamics of the legal process. No information is gained on how and why prisoners
reacted to AEDPA. Hence, Congress should be prepared to focus on the manner and outcome of
case resolution as it considers future refinement in the provisions of AEDPA and PLRA.
A fifth lesson is that the U.S. Congress should be able to improve its policy initiatives in
the area of prisoner litigation in the future. The current research has clarified some basic issues,
and the terms of policy debates should have been advanced accordingly. We now know that it is
quite possible to influence Section 1983 cases through conscious policy choices. More
information is needed to know exactly how relative the importance of different legislative

provisions play in shaping case filings. However, that connection is not unknowable. For this
reason, the existing legislation should be amenable to a more focused dialogue on how best to
refine existing provisions. On the other hand, the impact of conscious policy choices in habeas
corpus petitions should be seen as a more complex matter than what the Congress previously
might have assumed. More basic research and thought are necessary to develop provisions that
have a reasonable chance of achieving the goal of a reduction in petitions. Hence, the Congress
should build on its past efforts and use the knowledge gained to craft more legislation that
achieves its intended objective without sacrificing the interests and rights of prisoners.

Disciplinary Self-Help Litigation Manual - Side