RETHINKING THE PLRA: THE RESILIENCY
OF INJUNCTIVE PRACTICE AND WHY IT’S
NOT ENOUGH
Allison M. Freedman*
During the latter part of the twentieth century, prison populations in the
United States increased exponentially and the nation became notorious for mass
incarceration. Despite what many viewed as a broken prison system, in 1996
Congress passed the Prison Litigation Reform Act (“PLRA”), with the avowed
purpose of hindering prisoners and their advocates from bringing civil rights
actions to challenge prison conditions, laws, and policies. To accomplish this,
Congress curbed courts’ most powerful remedial tool—injunctive relief. As a
result, early scholarship predicted that injunctive practice would become a useless
tool in prison reform litigation.
Instead, twenty-five years after Congress passed the Act, a limited injunctive
practice has adapted and survived. Through a survey of fifty consent decrees and
a series of case studies, this Article shows that some injunctive practice remains
possible where (1) lawyers carefully craft consent decrees to sidestep the PLRA’s
hurdles to injunctive relief, and (2) judges take persistent and stern measures to
help move defendants toward compliance with the decrees.
Ultimately, however, this restricted injunctive practice is not enough. This
Article demonstrates that despite advocates’ and judges’ best efforts to circumvent
the Act’s limitations, the PLRA continues to hamper necessary prison reform. For
this reason, it is time to rethink the PLRA—our nation’s recent outcry for
reconsideration of the criminal justice system is an ideal catalyst for reassessing
the Act and its effects on people least able to assert their rights.

* Allison M. Freedman is a Clinical Teaching Fellow in the University of Michigan
Law School Civil-Criminal Litigation Clinic. I would like to thank Kim Thomas, Paul
Reingold, Dave Moran, Margo Schlanger, Alexandra Smith, Mira Edmonds, and Danielle
Kalil for their generous and insightful feedback. I would also like to thank my colleagues at
the NYU Clinical Law Review Writers’ Workshop, facilitated by Jane Aiken and Warren
Binford, for their valuable input into the direction of this Article. I am grateful to Nathaniel
Flack, Loren Lee, and the University of Michigan Law Librarians for their excellent research
assistance. Finally, special thanks to Elias Schultz, Victoria Comesañas, and the Stanford Law
& Policy Review’s editorial staff.

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INTRODUCTION .......................................................................................... 318
I. THE PRISON CRISIS ................................................................................ 320
A. Mass Incarceration .................................................................. 320
B. Deplorable Conditions of Confinement .................................. 323
C. A Renewed Call For Action .................................................... 324
II. HISTORY AND CONSEQUENCES OF THE PLRA ..................................... 327
A. Historical Backdrop ................................................................ 327
B. Legislative History of the PLRA ............................................ 327
C. Post-PLRA Changes ............................................................... 329
D. Predictions About the PLRA’s Impact on Injunctive Practice 330
III. PROSPECTIVE INJUNCTIVE RELIEF ...................................................... 332
A. Modes of Judicial Enforcement .............................................. 332
B. Entering Into Court-Enforced Relief....................................... 333
C. Terminating Court-Enforced Relief ........................................ 335
1. Substantial compliance...................................................... 337
2. Extended termination timeframe ....................................... 338
3. Hybrid ............................................................................... 339
4. Opt Out .............................................................................. 340
IV. THE IMPORTANCE OF INJUNCTIVE PRACTICE IN ACHIEVING
COMPLIANCE WITH POST-PLRA CONSENT DECREES .................... 341
A. Achieving Compliance............................................................ 341
B. Role of the Courts ................................................................... 342
C. Case Studies: Court Involvement in Achieving Compliance .. 345
1. Case study 1—Written opinion of the Court ..................... 345
2. Case study 2—Enforcement motions ................................ 348
3. Case study 3—Remediation of noncompliance ................ 350
4. Case study 4—Extension of decree beyond period initially
contemplated ..................................................................... 352
5. Case study 5—Court-brokered settlement ........................ 354
V. WHY PRACTITIONER AND COURT INVOLVEMENT ISN’T ENOUGH ....... 356
CONCLUSION ............................................................................................. 360
INTRODUCTION
During the last quarter of the twentieth century, tough-on-crime policies
swept the country. New laws created more crimes, longer sentences, and harsher
release policies. Predictably, prison populations skyrocketed. The United States
became notorious for “mass incarceration,” especially as compared to other
liberal democracies. Corrections budgets failed to keep pace, resulting in
overcrowded prisons, deplorable confinement conditions, and dangerously
deficient healthcare. Rather than address what many viewed as a broken prison

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system, in 1996 Congress passed the Prison Litigation Reform Act (“PLRA”)
with the avowed purpose of hindering prisoners and their advocates from
bringing civil rights actions to challenge prison conditions, laws, and policies.
Before the PLRA, courts played an important role in combating prison
injustice. But the PLRA aimed to curb courts’ most powerful remedial tool—
injunctive relief, typically with ongoing court monitoring to ensure timely
compliance. In particular, the PLRA recast the requirements for entry into and
termination of injunctive settlements (i.e. court-enforced consent decrees),
departing from the broad leeway judges possess when approving, monitoring,
and terminating non-PLRA settled decrees. These limitations make it more
difficult for courts to approve settlement agreements that call for the court to
retain jurisdiction for enforcement purposes. The PLRA also requires judges to
terminate decrees after just two years, regardless of compliance with the decree
(if the requisite low showing under the PLRA can be made).
Given these restrictions, early scholarship predicted that injunctive relief
would become a useless tool in prison reform litigation. Lawyers called for repeal
of the Act and filed challenges to parts of the PLRA. These challenges have been
mostly unsuccessful, leaving intact what many view as unconstitutional or
otherwise draconian measures designed to impede access to the courts for people
least able to assert their rights in any forum.
Despite the PLRA’s constraints, twenty-five years after Congress passed the
Act, a limited injunctive practice has adapted and survived. Through a survey of
fifty consent decrees and a series of case studies, this Article shows that some
injunctive practice remains possible where (1) lawyers carefully craft consent
decrees to sidestep the PLRA’s entry and termination hurdles, and (2) judges
take persistent and stern measures to help move defendants toward compliance.
Yet notwithstanding the efforts of attorneys and some judges to enforce
prisoners’ rights, the PLRA continues to hamper such reform. It ties judges’
hands and can lead to less than full compliance with the very settlement
agreements the parties consented to.
Recent seismic events have refocused the nation on pervasive constitutional
violations at prisons across the country and breathed new life into the need for
criminal justice reform. COVID-19 is ravaging American prisons, while the
killing of George Floyd has galvanized the debate about policing and mass
incarceration. Thus, although previous calls for modification and repeal of the
PLRA have gone unanswered, our nation’s recent outcry for reconsideration of
the criminal justice system—including laws and policies affecting the
voiceless—may be just what is needed to ignite rethinking the PLRA.
Part I looks at the history of mass incarceration as well as the prevalence of
cruel and inhumane prison conditions across the country, ranging from
overcrowding to inadequate healthcare to sexual violence. It also details the
nation’s recent call to action around criminal justice reform to highlight the
importance of reconsidering the PLRA at this moment in time. Part II outlines
the context and legislative history of the PLRA, early scholarship predicting the

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demise of injunctive practice, and litigation efforts to dismantle the Act. Part III
examines the PLRA’s limits on injunctive relief and focuses on the ways
plaintiffs have crafted consent decrees that stretch enforcement beyond the
PLRA’s two-year limit. Part IV uses a survey of fifty consent decrees and a series
of case studies to show that while compliance with decrees is often fraught,
courts can play a vital role in helping parties remedy prison conditions within the
PLRA’s limits. In fact, given the lack of political will from other government
institutions, courts are one of the only vehicles for prison reform. For this reason,
as long as the PLRA remains in effect, lawyers should not shy away from using
the courts to enforce injunctive relief. Instead, lawyers should use the lessons
learned from the case studies (as well as twenty-five years of PLRA litigation)
to stamp out unconstitutional conditions of confinement. Finally, Part V
highlights some of the limitations the PLRA presents despite the creative work
lawyers and courts are doing within the confines of the Act. It argues that prison
reform would ultimately benefit from rethinking the PLRA as it pertains to
injunctive practice. 1
I. THE PRISON CRISIS 2
To understand the importance of a fulsome discussion about the PLRA and
its restraints on prison reform litigation, we must first explore the crisis facing
our nation’s prison system.
A. Mass Incarceration
Beginning in the early 1970s, incarceration in the United States rose
dramatically for nearly four decades. 3 Between 1980 and 2010, there was an
1. This Article recognizes that prison reform litigation can itself perpetuate the carceral
state and thus have a detrimental effect on incarcerated populations. See, e.g., Amna A. Akbar,
An Abolitionist Horizon for (Police) Reform, 108 CALIF. L. REV. 1781, 1843 (2020)
(“Abolitionist campaigns expand our notions of law reform, which are typically focused on
federal constitutional rights. Abolitionist demands . . . remind us that if we are interested in
building a more just world, we cannot wage our battles simply on the terrain of rights,
litigation, rule of law, or administrative innovation.”); Dorothy E. Roberts, Foreword,
Abolition Constitutionalism, 133 HARV. L. REV. 1, 20 (2019) (concluding that “the carceral
system cannot be fixed—it must be abolished”); Amna A. Akbar, How Defund and Disband
Became the Demands, N.Y. REV. (June 15, 2020), https://perma.cc/GX52-HLM5 (“[C]alls to
defund and disband police have roots in decades of prison abolitionist organizing, which aims
to end incarceration and policing in favor of a society grounded in collective care and social
provision.”). Nonetheless, this Article focuses on reform litigation to highlight some of the
ways lawyers and courts have succeeded in the face of the PLRA, while ultimately concluding
that the PLRA remains deeply flawed and calling for rethinking the Act.
2. Throughout this Article, the term “prison” often refers to correctional facilities (both
prisons and jails) generally.
3. NAT’L RSCH. COUNCIL, THE GROWTH OF INCARCERATION IN THE UNITED STATES:
EXPLORING CAUSES AND CONSEQUENCES 33 (Jeremy Travis, Bruce Western, & Steve Redburn
eds., 2014); see also Carla I. Barrett, Note, Does the Prison Rape Elimination Act Adequately

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approximately 222% increase in the rate of incarceration in state prisons, due
largely to changes in policy rather than changes in crime rates. 4 Nixon’s
proclamation of a war on drugs and the “tough-on-crime” mentality that followed
led to skyrocketing rates of incarceration. 5 Since the war on drugs began in
earnest in the 1980s, the number of people incarcerated for drug offenses soared
from 40,900 in 1980 to 452,964 in 2017. 6 That means there are more people
incarcerated for drug offenses now than the total number of people in jail or
prison for any crime in 1980. 7 Legislatures also began enacting laws which
removed sentencing discretion from judges and instead required mandatory
incarceration. For example, mandatory minimum sentences, 8 longer sentences
for certain types of crimes, 9 “truth-in-sentencing laws” (designed to eliminate
opportunities for early release), 10 and three-strikes laws all contributed to mass
incarceration. 11
Today, the United States is the world’s leader in incarceration with over 2.2
million people in our prisons and jails. 12 This represents a 500% increase over
the last forty years, despite increasing evidence that large-scale incarceration is
not an effective means of achieving public safety. 13 Indeed, as of 2014, nearly
one out of every 100 adults was in prison or jail, making the U.S. incarceration
rate five to ten times higher than the rates in Western European and other liberal
democracies. 14
We are not only sending more people to prison, but keeping them in prison
Address the Problems Posed by Prison Overcrowding? If Not, What Will?, 39 NEW ENG. L.
REV. 391, 391 (2005).
4. Marc Mauer, Long-Term Sentences: Time to Reconsider the Scale of Punishment, 87
UMKC L. REV. 113, 113 (2018); see also Russell W. Gray, Note, Wilson v. Seiter: Defining
the Components of and Proposing a Direction for Eighth Amendment Prison Condition Law,
41 AM. U. L. REV. 1339, 1340 (1992) (“The growth in the prison population can be attributed
in part to the nationwide crackdown on crime that occurred in the 1970s and 1980s.”).
5. Mauer, supra note 4, at 114, 119.
6. Criminal Justice Facts, SENT’G PROJECT, https://perma.cc/V7G8-XEC7
(archived May 26, 2021).
7. Id.
8. Christopher Mascharka, Mandatory Minimum Sentences: Exemplifying the Law of
Unintended Consequences, 28 FLA. ST. U. L. REV. 935, 936 (2001).
9. Barrett, supra note 3, at 394-95.
10. James Cullen, Sentencing Laws and How They Contribute to Mass Incarceration,
BRENNAN CTR. FOR JUST. (Oct. 5, 2018), https://perma.cc/AZH3-RCND.
11. Id.; see also Erwin Chemerinsky, The Essential but Inherently Limited Role of the
Courts in Prison Reform, 13 BERKELEY J. CRIM. L. 307, 309-11 (2008) (noting that “the
enactment of three-strikes laws across the county . . . had the effect of dramatically increasing
prison populations”).
12. SENT’G PROJECT, supra note 6.
13. Id.; see also Betsy Pearl, Ending the War on Drugs: By the Numbers, CTR. FOR AM.
PROGRESS (June 27, 2018, 9:00 AM), https://perma.cc/DV3C-5HV9 (“Incarceration has a
negligible effect on public safety. Crime rates have trended downward since 1990, and
researchers attribute 75 to 100 percent of these reductions to factors other than incarceration.”).
14. NAT’L RSCH. COUNCIL, supra note 3, at 13.

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longer. Of the 222% growth in the state prison population between 1980 and
2010, nearly half of that growth was due to an increase in time served in prison
for all offenses. 15 There has also been a surge in people serving life sentences,
with one in every nine people in prison now serving a life sentence. 16
This problem is particularly acute for racial minorities. People of color make
up 37% of the U.S. population, but 67% of the prison population. 17 Incarceration
rates for Black men are about twice as high as those of Hispanic men, and five
times higher than those of white men. 18 In fact, close to 10% of Black men in
their thirties are in prison or jail on any given day. 19 And as of the late 1990s,
one-third of Black men in their twenties were in some form of government
custody, whether in prison, on probation, on parole, or under another type of
court-ordered supervision. 20 Indeed, in 2001, when the government last tallied
how many Black men had spent time in state or federal prison, it was close to
17%; today it is likely closer to 20%. 21
It is true that incremental changes have been made over the past decade.
Congress, for example, passed the Fair Sentencing Act in 2010, which reduced
the disparity in sentencing between crack and powder cocaine offenses. 22 It also
passed the First Step Act in 2018 to limit mandatory minimums for low-level
drug offenses, provide retroactive sentence reductions to people imprisoned
under the previous cocaine-disparity laws, and expand rehabilitation in federal
prisons. 23 But the reality remains that millions of people are still incarcerated in
jails and prisons around the country. The conditions in which they are confined
thus remain a vital concern. 24
15. SENT’G PROJECT, supra note 6.
16. Id.
17. Id.
18. David Leonhardt, When Jail Becomes Normal, N.Y. TIMES (June 3, 2020),
https://perma.cc/22RC-S33J.
19. Id.
20. Dorothy E. Roberts, The Social and Moral Cost of Mass Incarceration in African
American Communities, 56 STAN. L. REV. 1271, 1272, 1274 (2004).
21. Leonhardt, supra note 18.
22. Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (2010) (codified
as amended in scattered sections of 21 U.S.C.); see also SENT’G PROJECT, supra note 6.
23. First Step Act of 2018, Pub. L. No 115-391, 132 Stat. 5194 (2018); see generally,
Jesselyn McCurdy, The First Step Act is Actually the “Next Step” After Fifteen Years of
Successful Reforms to the Federal Criminal Justice System, 41 CARDOZO L. REV. 189 (2019)
(describing the history leading up to and key provisions of the First Step Act of 2018); Kara
Gotsch, One Year After the First Step Act: Mixed Outcomes, SENT’G PROJECT (Dec. 17, 2019),
https://perma.cc/GSP3-CSAD (discussing successes and challenges of the First Step Act one
year after the law’s passage).
24. See, e.g., Dirk van Zyl Smit, Regulation of Prison Conditions, 39 CRIME AND JUST.
503, 504 (2010) (“In the process of imprisonment the prison authorities exercise direct and
enormous power over those who are imprisoned. This power shapes the conditions under
which prisoners are held. These conditions not only determine the quality of prisoners’ lives
but may also literally be a matter of life or death for them. Regulating prison conditions is
therefore of prime importance both for prisoners and for society as a whole, which also has a

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B. Deplorable Conditions of Confinement
Inmates should be free from sexual abuse, violence, inadequate healthcare,
or other unconstitutional conditions of confinement. Yet deficiencies in staffing,
supervision, and overcrowding make all of these problems worse, putting
additional strain on an already fraught system. Recent Department of Justice
(“DOJ”) reports reveal cruel and inhumane conditions 25 in many prisons and jails
across the country. 26
In one recent investigation, DOJ concluded that the Alabama Department of
Corrections was likely violating the Eighth Amendment rights of prisoners
housed in Alabama’s men’s prisons:
[V]iolations that are severe, systemic, and exacerbated by serious deficiencies
in staffing and supervision; overcrowding; ineffective housing and
classification protocols; inadequate incident reporting; inability to control the
flow of contraband into and within prisons, including illegal drugs and
weapons; ineffective prison management and training; insufficient maintenance
and cleaning facilities; the use of segregation and solitary confinement to both
punish and protect victims of violence and/or sexual abuse; and a high level of
violence that is too common, cruel, of an unusual nature, and pervasive. 27

During a one-week visit to Alabama’s prisons, DOJ observed: a prisoner
stabbed to death, several other prisoners stabbed multiple times, prisoners found
with methamphetamine and other hallucinogenic drugs, a sleeping prisoner
beaten with a sock filled with metal locks, a prisoner punched in the face so hard
he required outside medical treatment, several prisoners reporting sexual assault,
a prisoner threatening a correctional officer with a knife, a prisoner setting fire
to another prisoner’s bed while he was sleeping, and a prisoner who overdosed
on synthetic cannabinoid and later died. 28
In another recent investigation, DOJ found reason to believe the conditions
at the Boyd County Detention Center in Catlettsburg, Kentucky, were violating
the Fourth, Eighth, and Fourteenth Amendments. 29 DOJ found that:
wider interest in the efficacy of prisons.”).
25. Some have characterized treatment like this as amounting to torture. See, e.g.,
Roberts, supra note 1, at 18 (“As carceral logics take over ever-expanding aspects of our
society, so does the cruelty that government agents visit on people who are the most vulnerable
to state surveillance and confinement. Torture has been accepted as a technique of racialized
carceral control.”).
26. See Special Litigation Section Cases and Matters, Corrections, U.S. DEP’T OF JUST.,
https://perma.cc/9DM6-SPAT (archived May 26, 2021) (listing recent investigations and
litigation involving prisons and jails by state). While these examples do not speak for all jails
and prisons, they demonstrate some of the most egregious examples of confinement conditions
that have resulted in Department of Justice involvement.
27. U.S. DEP’T OF JUST., INVESTIGATION OF ALABAMA’S STATE PRISONS FOR MEN 1-2
(2019), https://perma.cc/PF74-JHBD.
28. Id. at 2-3.
29. U.S. DEP’T OF JUST., INVESTIGATION OF THE BOYD COUNTY DETENTION CENTER
(CATLETTSBURG, KENTUCKY) 1 (2019), https://perma.cc/K6VA-VS7N.

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Correctional officers routinely use excessive force when they use chemical
agents such as pepper spray or electronic control devices, and when they place
prisoners in the restraint chair.
Boyd County violates the constitutional rights of bodily privacy of prisoners by
restraining nearly naked prisoners in full view of both prisoners and staff of the
opposite gender. Prisoners identified as a suicide risk and non-suicidal prisoners
being punished, are stripped of their clothing and placed in suicide smocks with
no undergarments, and strapped with their legs apart to the restraint chair in an
open hallway, their genitals exposed to passers-by . . . .
In June of 2018, a prisoner died of a drug overdose and in November of 2018 a
second prisoner died of a drug overdose. On December 21, 2018, five
correctional officers were indicted for first degree manslaughter of a prisoner
found dead in a restraint chair on November 29, 2018 from blunt force trauma
to his side which fractured three ribs and caused internal bleeding, resulting in
death. 30

At the time of DOJ’s report, the Kentucky Department of Corrections had
since removed all state prisoners from the jail due to ongoing concerns about
security and prisoner safety. 31
In early 2020, DOJ announced that it had opened an investigation into four
of Mississippi’s prisons. 32 The action came on the heels of the deaths of fifteen
inmates in about six weeks. 33
While these examples highlight intolerable conditions at only a few prisons
and jails, many other facilities across the country have been investigated for
inhumane conditions. 34 Thus, not only are large numbers of inmates serving long
sentences, but they are often subjected to unconstitutional conditions of
confinement. Consent decrees enforced by courts can help remedy these
conditions. But the PLRA hinders court action. For this reason, studying the ways
advocates and courts have continued to enforce prisoners’ rights despite the
PLRA is an important endeavor.
C. A Renewed Call For Action
The COVID-19 outbreak in 2020 also shed new light on the abhorrent
conditions in our nation’s prisons. Prison overcrowding, for example, came into
stark focus. At the end of 2018, in twelve states and the federal Bureau of Prisons
(“BOP”), the prison population was equal to or greater than the prisons’
30. Id. at 1-2.
31. Id. at 2.
32. Justice Department Announces Investigation into Conditions in Four Mississippi
Prisons, U.S. DEP’T OF JUST. (Feb. 5, 2020), https://perma.cc/B38B-YQS3.
33. See Kim Bellware, 15 Dead in Six Weeks. Can a Federal Investigation Fix the Grim
Legacy of Mississippi’s Prisons?, WASH. POST (Feb. 7 2020, 12:15 AM),
https://perma.cc/BTX2-PX98; Scott Neuman, DOJ to Investigate Mississippi Prisons After
Spate of Inmate Deaths, NPR (Feb. 6, 2020, 5:01 AM), https://perma.cc/L2KY-BZQA.
34. Special Litigation Section Cases and Matters, Corrections, supra note 26.

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maximum capacity, resulting in incarcerated people crammed into dorms and
warehoused in rooms with bunkbeds only inches apart. 35 Such conditions have
made social distancing during the pandemic impossible, and thus vastly
increased the risk of infection and death. 36 In fact, even as coronavirus cases
nationwide began to plateau during the summer of 2020, they continued to soar
in prisons and jails across the United States, with the five largest clusters of the
virus in the U.S. being inside prisons. 37 The importance of adequate staffing also
came to the forefront. COVID-19 reduced the number of correctional staff at
many facilities, resulting in inadequate security and increased violence and
abuse. 38 Perhaps most salient, the woefully inadequate healthcare systems in
prisons and jails became impossible to ignore. 39
The global protests beginning in June 2020 in response to the killing of
George Floyd also placed a much-needed spotlight on the racial disparities and
inequities in our nation’s criminal justice system, including in prisons. 40 Calls
35. E. ANN CARSON, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., NCJ 253516,
PRISONERS IN 2018 25 (2020), https://perma.cc/675W-FRRX; see also Covid-19’s Impact on
People in Prison, EQUAL JUST. INITIATIVE, https://perma.cc/3AQJ-DQSV (archived May 26,
2021).
36. EQUAL JUST. INITIATIVE, supra note 35; see also Eddie Burkhalter et al.,
Incarcerated and Infected: How the Virus Tore Through the U.S. Prison System, N.Y. TIMES
(Apr. 10, 2021), https://perma.cc/6SA9-R2BE (stating that more than 525,000 people have
been infected and at least 2,683 inmates and correctional officers have died in American jails
and prisons, and listing total number of cases by prison and jail, with Fresno County Jail in
Fresno, California at the top with 3,985 cases). Lawsuits addressing such pandemic-related
challenges in prisons and jails have sprung up around the country. See Special Collection,
COVID-19 (Novel Coronavirus), C.R. LITIG. CLEARINGHOUSE, https://perma.cc/3NET-L3EU
(archived May 26, 2021) (collecting cases that address challenges posed by the COVID-19
pandemic, social distancing, and more); Responses to the COVID-19 Pandemic, PRISON POL’Y
INITIATIVE, https://perma.cc/ZP7V-SN2W (last updated May 18, 2021) (collecting court
orders directing releases and other COVID-19 responses); Covid-19 Behind Bars Data
Project, UCLA L., https://perma.cc/6584-ST97 (archived May 26, 2021) (tracking COVID19 conditions in jails and prisons as well as efforts, both in and out of court, to decrease jail
and prison populations and improve conditions to ensure the safety of residents and staff).
37. Timothy Williams, Libby Seline & Rebecca Griesbach, Coronavirus Cases Rise
Sharply in Prisons Even as They Plateau Nationwide, N.Y. TIMES (June 16, 2020, updated
Nov. 30, 2020), https://perma.cc/TY3Z-K73Y (“The number of prison inmates known to be
infected has doubled during the past month to more than 68,000. Prison deaths tied to the
coronavirus have also risen, by 73 percent since mid-May.”).
38. EQUAL JUST. INITIATIVE, supra note 35; see also Brendon Derr, Rebecca Griesbach
& Danya Issawi, States Are Shutting Down Prisons as Guards Are Crippled by Covid-19, N.Y.
TIMES (Jan. 1, 2021), https://perma.cc/E84M-EPEG.
39. Brie A. Williams, Cyrus Ahalt, David Cloud, Dallas Augustine, Leah Rorvig, &
David Sears, Correctional Facilities in the Shadow of COVID-19: Unique Challenges and
Proposed Solutions, HEALTH AFF. (Mar. 26, 2020), https://perma.cc/T36A-9X5A (stating that
correctional facilities “lack the medical supplies needed to treat people who get seriously ill
from COVID-19 infection[s],” meaning that “widespread community transmission of COVID19 within a correctional institution is likely to result in a disproportionately high COVID-19
mortality rate,” and noting that “correctional healthcare systems are typically understaffed”).
40. See Audra D. S. Burch et al., How Black Lives Matter Reached Every Corner of
America, N.Y. TIMES (June 13, 2020), https://perma.cc/MT86-HPG6 (recognizing that people

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for justice cut across a diverse spectrum of supporters, 41 and people marched in
the streets calling for change, despite the risks of demonstrating during a
pandemic. 42 As Michelle Alexander put it: “Our democracy hangs in the
balance. . . . Over the years, many have said that ‘the degree of civilization in a
society can be judged by entering its prisons.’ Today, the same can be said of our
criminal injustice system.” 43
In other words, the prison crisis in the United States has been staring us down
for years, and is now unavoidable. So what can we do to begin to address the
crisis? While the answers are complex, one potential solution, albeit a modest
step in the right direction, lies in what may seem like an unexpected place—
robust injunctive action in prison conditions cases. Although the PLRA
continues to handicap litigation aimed at prison reform, practitioners and courts
have navigated some of the PLRA’s hurdles to continue to vindicate prisoners’
rights and, in some cases, remedy unconstitutional conditions of confinement. 44
Given that this was not a foregone conclusion, how they have done so and the
importance of continuing to do so as long as the PLRA remains in effect, is the
focus of the sections that follow. The survey of fifty consent decrees below
demonstrates the importance of court involvement in forcing states to uphold
constitutional standards. And lawyers and judges can look to the case studies
below as guidance when considering their own cases involving prospective
injunctive relief in prison conditions cases. Injunctive practice certainly won’t
solve our nation’s mass incarceration or racial injustice problems on its own, and
the PLRA still places unnecessary strain on prison reform litigation generally.
Yet looking at what can be accomplished within the confines of the PLRA is one
important avenue for pursuing justice in a complicated and fraught system.

“protested in every single state and in Washington, D.C., with turnouts that ranged from
dozens to tens of thousands”); Alan Taylor, Images From A Worldwide Protest Movement,
ATLANTIC (June 8, 2020), https://perma.cc/ZX43-F74J (noting that “[o]ver the weekend,
demonstrations took place around the world, with thousands of people outside the United
States marching to show solidarity with American protests over the killing of George Floyd
by Minneapolis police,” and stating that marchers worldwide voiced their anger about
systemic racism and police brutality).
41. See, e.g., Amy Harmon & Sabrina Tavernise, One Big Difference About George
Floyd Protests: Many White Faces, N.Y. TIMES (June 12, 2020), https://perma.cc/9Y65ZESU; Leila Miller, George Floyd Protests Have Created a Multicultural Movement That’s
Making History, L.A. TIMES (June 7, 2020, 6:00 AM), https://perma.cc/CTQ7-J7F3.
42. See, e.g., Amy Harmon & Rick Rojas, A Delicate Balance: Weighing Protest
Against the Risks of the Coronavirus, N.Y. TIMES (June 7, 2020), https://perma.cc/2Y8MXKXR; Rowena Mason, Black Lives Matter Protests Risk Spreading Covid-19, Says Hancock,
GUARDIAN (June 7, 2020, 5:49 PM), https://perma.cc/HD2E-9D7S.
43. Michelle Alexander, America, This Is Your Chance, N.Y. TIMES (June 8, 2020),
https://perma.cc/M4H7-2MCJ. Michelle Alexander is the author of THE NEW JIM CROW: MASS
INCARCERATION IN THE AGE OF COLORBLINDNESS (2010). See also Sarah Stillman, Will the
Coronavirus Make Us Rethink Mass Incarceration?, NEW YORKER (May 18, 2020),
https://perma.cc/9XPJ-8UQF.
44. See Parts III and IV below.

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II. HISTORY AND CONSEQUENCES OF THE PLRA
A. Historical Backdrop
In the first half of the twentieth century, most courts believed their role with
respect to criminal defendants ended with sentencing. 45 As the Fifth Circuit
noted in 1934, “[t]he prison system of the United States is under the control of
the Attorney General and Superintendent of Prisons, and not of the district courts.
The court has no power to interfere with the conduct of the prison or its
discipline.” 46 By the late 1960s, however, civil rights lawyers began challenging
prison conditions and practices through the federal courts. 47
By engaging the courts, throughout the 1970s and 1980s prisoners and their
lawyers successfully challenged unconstitutional conditions of confinement: By
1993, forty states were under court order to reduce overcrowding and/or
eliminate unconstitutional conditions of confinement. 48 Despite this success, the
political context began to change “from reform to retrenchment,” with the
“dominant political discourse depict[ing] black citizens as drains on the state
rather than rightful claimants of equal opportunity, and criminal offenders as
objects of ‘risk’ rather than rehabilitation.” 49
B. Legislative History of the PLRA
Against this backdrop, Congress enacted the 1996 Prison Litigation Reform
Act. 50 The Act was passed after just one hearing as part of the Republican
legislative agenda known as the “Contract with America,” slipping in as a rider

45. Claude Pepper, Judicial Activism in Prison Reform, 22 CATH. U. L. REV. 96, 96
(1972).
46. Platek v. Aderhold, 73 F.3d 173, 175 (5th Cir. 1934).
47. Heather Schoenfeld, Mass Incarceration and the Paradox of Prison Conditions
Litigation, 44 L. & SOC’Y REV. 731, 731 (2010); see also Abram Chayes, The Role of the Judge
in Public Law Litigation, 89 HARV. L. REV. 1281, 1286 (1976) (The “traditional model” was
for judges to remain passive, bound “to decide only those issues identified by the parties, in
accordance with the rules established by the appellate courts, or . . . the legislature,” and
having “little or no responsibility for the factual aspects of the case or for shaping and
organizing the litigation for trial.”).
48. Schoenfeld, supra note 47, at 732; see also Margo Schlanger, Plata v. Brown and
Realignment: Jails, Prisons, Courts, and Politics, 48 HARV. C.R.-C.L. L. REV. 165, 196 (2013)
(noting that “prison population orders—imposed by federal and state trial courts during civil
rights litigation or developed as part of court settlements—were once commonplace”).
49. Schoenfeld, supra note 47, at 733. For further detail about this historical backdrop,
see MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL POLICY MAKING AND THE MODERN
STATE: HOW THE COURTS REFORMED AMERICA’S PRISONS (1998).
50. Prison Litigation Reform Act, Pub. L. No. 104-134, 110 Stat. 13 (1996) (codified as
amended in various sections: 11 U.S.C. § 523 (2018); 18 U.S.C. §§ 3624, 3626 (2018); 28
U.S.C. §§ 1346, 1915, 1915A (2018); 42 U.S.C. §§ 1997-1997h (2012)).

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to the Omnibus Consolidated Recessions and Appropriations Act of 1996. 51
Supporters of the Act had two main goals: to reduce what they viewed as a
large volume of frivolous prisoner litigation, and to discourage “overzealous
federal courts” from micromanaging the nation’s prison system. 52 Supporters
pushed an agenda premised on the idea that prisoners were unnecessarily
litigious, filing federal cases over any and every trivial occurrence and thereby
bogging down the judiciary and detracting from potentially serious cases. 53 And
they rallied support around a handful of evocative (but not representative)
cases—e.g. about peanut butter, 54 melted ice cream, 55 and bad haircuts 56—to
highlight the absurdity of prisoners’ legal claims.
Supporters of the PLRA also believed that federal courts had overstepped
their bounds in regulating these cases. In discussing the legislation before its
passage, Senator Spencer Abraham stated that the reforms were aimed at
“discourag[ing] judges from seeking to take control over our prison systems, and
to micromanage them right down to the brightness of the lights.” 57 He made clear
that “[m]ost fundamentally, the proposed bill forbids courts from entering orders
for prospective relief (such as regulating food temperatures) unless the order is
necessary to correct violations of individual plaintiffs’ Federal rights.” 58 Senator
Orrin Hatch echoed these remarks: “It is past time to slam shut the revolving
51. Margo Schlanger, Anti-Incarcerative Remedies for Illegal Conditions of
Confinement, 6 U. MIAMI RACE & SOC. JUST. L. REV. 1, 8, 27 (2016) (citing REPUBLICAN
NAT’L COMM., CONTRACT WITH AMERICA: THE BOLD PLAN BY REPRESENTATIVE NEWT
GINGRICH, REPRESENTATIVE DICK ARMEY, AND THE HOUSE REPUBLICANS TO CHANGE THE
NATION 53 (Gillespie & Schellhas eds., 1994)); Susan N. Herman, Slashing and Burning
Prisoners’ Rights: Congress and the Supreme Court in Dialogue, 77 OR. L. REV. 1229, 1277
(1998) (“The legislative process leading to the passage of the PLRA was characterized by
haste and lack of any real debate.”).
52. See, e.g., 141 CONG. REC. 26,449 (1995) (statement of Sen. Abraham).
53. Id.
54. Margo Schlanger, Inmate Litigation, 116 HARV. L. REV. 1555, 1568-69 (2003)
[hereinafter Inmate Litigation] (“Perhaps the paradigmatic case, as described by NAAG
members, was about peanut butter: ‘an inmate sued, claiming cruel and unusual punishment
because he received one jar of chunky and one jar of creamy peanut butter after ordering two
jars of chunky from the prison canteen.’”).
55. Id. at 1568 (citing Associated Press, Vacco Targets Frivolous Lawsuits Filed by
Inmates, BUFFALO NEWS, June 13, 1995, at A4, 1995 WL 548144 (referencing lawsuit about
melted ice cream)).
56. Kermit Roosevelt III, Exhaustion Under the Prison Litigation Reform Act: The
Consequence of Procedural Error, 52 EMORY L.J. 1771, 1772 (2003) (citing Associated Press,
Group Seeks to Cuff Frivolous Inmate Lawsuits, ORLANDO SENTINEL, Aug. 2 1995, at A8
(listing bad haircuts, lost sunglasses, tight underwear and melted ice cream as subjects of
prisoner lawsuits)); see also Herman, supra note 51, at 1297 (discussing prisoners allegedly
filing suit over the lack of a salad bar and the color of inmate towels). Second Circuit Judge
Jon Newman researched these allegedly “typical” cases used to drum up support for the PLRA
and found that the cases were misleading, and that publicized descriptions of the select cases
were sometimes simply false. Id. at 1298.
57. 141 CONG. REC. 26,449 (1995) (statement of Sen. Abraham).
58. Id.

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door on the prison gate and to put the key safely out of reach of the overzealous
Federal courts.” 59
Senator Ted Kennedy, on the other hand, called the Act “patently
unconstitutional” and a “dangerous legislative incursion into the work of the
judicial branch.” 60 He warned that it would set an unwarranted precedent for
“stripping the Federal courts of the ability to safeguard the civil rights of the
powerless and disadvantaged groups.” 61 Despite this disagreement over the
effect the PLRA would have, everyone agreed that: “No one, of course, is
suggesting that prison conditions that actually violate the Constitution should be
allowed to persist.” 62
C. Post-PLRA Changes
Upon its passage, the PLRA brought sweeping changes to the procedural
requirements and remedies available to prisoners trying to remediate
unconstitutional conditions in prisons and jails. 63 The changes were primarily
divided into two categories: (1) those aimed at individual inmate suits, meant to
address the alleged burden on courts from frivolous prisoner litigation; and
(2) those pertaining to prospective relief, intended to “get the federal courts out
of the business of running jails.” 64 The first set of changes required, among other
things, exhaustion of administrative remedies, filing fees even for individuals
proceeding in forma pauperis, judicial screening and dismissal of frivolous
complaints, limited damages for mental or emotional injury without a showing
of physical injury, and limits on attorneys’ fees. 65 The second set of changes—
most relevant to this Article—dictated a set of standards for all prospective relief,
requiring injunctive settlements to be limited in scope and inviting frequent
relitigating of injunctive remedies. 66
These changes had a dramatic effect on jail and prison litigation. Prisoner

59. 141 CONG. REC. 26,553 (1995) (statement of Sen. Hatch).
60. 142 CONG. REC. 5193 (1996) (statement of Sen. Kennedy).
61. Id.
62. The Role of the U.S. Dep’t of Justice in Implementing the Prison Litigation Reform
Act: Hearing Before the Comm. on the Judiciary, 104th Cong. 1 (1996) (statement of Sen.
Hatch).
63. Inmate Litigation, supra note 54, at 1627.
64. Roosevelt, supra note 56, at 1778 (citing Benjamin v. Jacobson, 172 F.3d 144, 182
(2d Cir. 1999) (en banc) (Calabresi, J., concurring)).
65. Margo Schlanger, Prisoners’ Rights Lawyers’ Strategies for Preserving the Role of
the Courts, 69 U. MIAMI L. REV. 519, 520-21 (2015) [hereinafter Prisoners’ Rights Lawyers’
Strategies]; Roosevelt, supra note 56, at 1778; Inmate Litigation, supra note 54, at 1627-33.
66. See 18 U.S.C. § 3626(a)(1)(A) (2018); 18 U.S.C. § 3626(b) (2018). The second
category of PLRA changes also set up standards specifically addressing prisoner-release
orders, making previously common population cap orders more difficult to obtain. See 18
U.S.C. § 3626(a)(3) (2018); but see Brown v. Plata, 563 U.S. 493 (2011) (affirming imposition
of prisoner release order in California).

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filing rates decreased precipitously, with total prisoner civil rights filings in
federal district courts decreasing from 38,262 in 1996—the year the PLRA was
passed—to 21,978 by 2007; filings per 1,000 prisoners decreased from 23.4 in
1996 to 9.6 by 2007. 67 From 2007 through 2015, filing rates and filings
essentially plateaued, and since 2015 a slight uptick has occurred. 68 The PLRA
also had a drastic effect on injunctive litigation and the prevalence of court orders
governing conditions of confinement. From approximately 1983 to 1995, about
half of the nation’s jail inmates, and about forty percent of the nation’s state
prisoners, were housed in facilities subject to court orders. 69 But by 2007, only
about twenty percent of state or jail inmates were housed in facilities reporting a
court order, and the numbers were even lower if calculated by facility, rather than
by population. 70 Further, while system-wide court orders aimed at conditions of
confinement were common before the PLRA, they are now rare. 71
D. Predictions About the PLRA’s Impact on Injunctive Practice
In the wake of the PLRA’s vast changes to prisoner litigation, legal scholars
predicted that injunctive practice would essentially become a useless tool in
prison reform litigation. 72 As prison litigation expert John Boston noted:
[T]he most consequential aspect of the PLRA’s recasting of prospective relief
law is its provision for termination of relief. . . . This section of the PLRA has
had . . . significant consequences for the shape of the remedial process in
prisoners’ civil rights litigation. Prior law, still applicable in non-prisoner cases,
recognized that institutional change takes time and may face resistance.
Accordingly, the Supreme Court has held that a decree should be ended only
when the defendant shows that there has been full and satisfactory compliance
with the order for a reasonable period of time, the defendant has exhibited a
good-faith commitment to the decree and the legal principles that warrant
judicial intervention, and the defendant is ‘unlikely to return to its former ways.’
Now, it appears, that likelihood of future recurrence of the constitutional
violation has been defined out of the inquiry in prisoner cases. 73
67. Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 522-26.
68. Id. at 525; MARGO SCHLANGER, SHEILA BEDI, DAVID M. SHAPIRO & LYNN S.
BRANHAM, INCARCERATION AND THE LAW, CASES AND MATERIALS (10th ed. Supp. 2020),
https://perma.cc/H7CS-TKTK (mapping at Figure 1.15 the litigation rates for prisoner civil
rights lawsuits from 1970-2017).
69. Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 525.
70. Id.
71. Margo Schlanger, Trends in Prisoner Litigation, as the PLRA Enters Adulthood, 5
U.C. IRVINE L. REV. 153, 169-70 (2015) [hereinafter Trends in Prisoner Litigation] (defining
“system-wide” as “states in which sixty percent or more of the facilities or population are
covered by court order,” and noting that “[i]n 2005 and 2006, respectively, only five states
reported system-wide court order coverage of their prisons, and only two states of their jails”).
72. See Roosevelt, supra note 56, at 1772 n.10 (stating that “[t]he enactment of the
PLRA inspired a flurry of academic commentary, much of it critical,” and collecting academic
works criticizing the PLRA).
73. John Boston, The Prison Litigation Reform Act: The New Face of Court Stripping,

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Other lawyers began filing challenges to various provisions of the PLRA.
For the most part, however, these lawsuits were unsuccessful, leaving what many
view as unconstitutional or otherwise draconian provisions intact. 74
Still others have called for the PLRA or portions of the Act to be repealed.
In May 2007, the American Bar Association’s (“ABA”) Criminal Justice Section
issued a report urging Congress to repeal or amend specific portions of the
PLRA, including eliminating the restrictions on the equitable authority of courts
in conditions-of-confinement cases. 75 The ABA noted that the scope of courts’
equitable powers in cases involving prisoners should be no different than the
scope of those powers in cases brought by all litigants. 76 On the twenty-year
anniversary of the PLRA, activist groups such as the Prison Policy Initiative
similarly called for the Act’s repeal. 77 And as recently as 2018, prisoners
organized one of the largest nationwide prison strikes in American history,
demanding that the PLRA be rescinded. 78
Notwithstanding calls for repeal, the PLRA still stands after twenty-five
years. Within the confines of the PLRA then, have predictions of a futile
injunctive practice come to fruition? Not exactly. As sections III and IV
demonstrate below, in some cases injunctive practice has survived the PLRA’s
attempt to decapitate it. Lawyers and courts have worked together to fulfill the
67 BROOK. L. REV. 429, 447-48 (2001).
74. See, e.g., Miller v. French, 530 U.S. 327 (2000) (upholding automatic stay provision
in 18 U.S.C. § 3626(e)(2) (2018)); Ruiz v. United States, 243 F.3d 941 (5th Cir. 2001)
(upholding termination of prospective relief); Hadix v. Johnson, 230 F.3d 840 (6th Cir. 2000)
(upholding attorney fee provision); Rodriguez v. Cook, 169 F.3d 1176 (9th Cir. 1999)
(upholding three strikes provision); Nicholas v. Tucker, 114 F.3d 17 (2d Cir. 1997) (upholding
in forma pauperis provisions); see also Margo Schlanger, Civil Rights Injunctions Over Time:
A Case Study of Jail and Prison Court Orders, 81 N.Y.U. L. REV. 550, 591 n.126 (2006)
[hereinafter Civil Rights Injunctions Over Time] (“The constitutionality of the immediate
termination provision followed a fortiori from the Court’s decision in Miller v. French.”). For
further critique of PLRA cases, see also Boston, supra note 73, at 451-52 (“The PLRA cases,
including the Supreme Court’s decision in Miller v. French, appear to give Congress the
equivalent power to legislate with respect to the remedial powers of the courts in constitutional
cases and to apply new laws to prior judgments. The emerging syllogism would seem to be
completed by the proposition that now, if a federal court does something that Congress does
not like in the course of enforcing the Constitution, Congress can direct the termination or
modification of that specific judicial act.”).
75. Report to the House of Delegates, A.B.A. CRIM. JUST. SECTION 1 (May 2007),
https://perma.cc/ZD2T-4NUY.
76. Id at 6.
77. Meredith Booker, 20 Years Is Enough: Time to Repeal the Prison Litigation Reform
Act, PRISON POL’Y INITIATIVE (May 5, 2016), https://perma.cc/53XX-XWX9.
78.
See Prison Strike 2018, INCARCERATED WORKERS ORG. COMM.,
https://perma.cc/FY26-G3BU (archived May 26, 2021) (discussing national prison strike from
August 21 through September 9, 2018 and listing demands of individuals in federal,
immigration, and state prisons); Julius Mitchell, Administrative Remedy or Litigation?
Contemplating the PLRA’s Availability Exception after Townsend v. Murphy, HARV. C.R.C.L. L. REV. (Dec. 30, 2018), https://perma.cc/8ZTY-4HBJ (discussing 2018 nationwide
prison strike).

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important mission of curbing constitutional violations in prisons, despite the
PLRA’s restrictive requirements.
III. PROSPECTIVE INJUNCTIVE RELIEF
A. Modes of Judicial Enforcement
Under the PLRA, there are three primary scenarios in which judicial
enforcement of a settlement agreement may come into play: (1) consent
decrees, 79 (2) private settlement agreements that allow a case to be reinstated in
federal court, 80 and (3) private settlements that can be enforced in state court. 81
The third scenario is rarely used and the second almost never results in
reinstatement. 82 For this reason, this Article focuses primarily on the first
scenario—settlements where the parties have obtained court approval of a
consent decree consistent with the Act’s requirements, and the court retains
jurisdiction to enforce the agreement.

79. See detailed discussion below. Although I use the term “consent decree” throughout
this Article to denote a post-PLRA agreement which requires court approval and under which
the court retains jurisdiction to enforce the agreement, parties to such agreements often use
different titles for the operative document. See Elizabeth Alexander, Getting to Yes in a PLRA
World, 30 PACE L. REV. 1672, 1681 (2010) (noting that for post-PLRA consent decrees, “the
most common name for these documents is ‘Settlement Agreement,’ or some close variant,
even when the document clearly contemplates some form of court enforcement,” and
commenting that “the amount of diversity in form, language and context” of related court
orders approving consent decrees “is striking”).
80. Parties can enter into “private settlement agreements” without judicial approval and
without meeting the PLRA’s restrictions on prospective injunctive relief because “relief”
under the PLRA “includes consent decrees but does not include private settlement
agreements.” 18 U.S.C. § 3626(g)(9) (2018). And “private settlement agreements” are defined
as “agreement[s] entered into among the parties that [are] not subject to judicial enforcement
other than the reinstatement of the civil proceeding that the agreement settled.” 18 U.S.C.
§ 3626(g)(6) (2018). The statute makes clear that parties can “enter[] into a private settlement
agreement that does not comply with the limitations on relief . . . if the terms of that agreement
are not subject to court enforcement other than the reinstatement of the civil proceeding that
the agreement settled.” 18 U.S.C. § 3626(c)(2)(A) (2018).
81. Parties can also enter into “private settlement agreements,” that provide for statecourt enforcement where a breach of the agreement occurs, rather than or in addition to
reinstatement of the federal litigation. See 18 U.S.C. § 3626(c)(2)(B) (2018) (“Nothing . . .
shall preclude any party claiming that a private settlement agreement has been breached from
seeking in State court any remedy available under State law.”).
82. Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 538-39 (noting that as of
2015, there were only two cases in which prisoner-plaintiffs had sought to reinstate the case
for an allegedly breached settlement: Third Am. Compl. for Civil Rights Violations,
Permanent Inj., Declaratory Relief, and Damages ¶¶ 28-29, Rouser v. White, No. 93-cv-00767
(E.D. Cal. May 7, 1993) and Compl. ¶¶ 2, 25, Williams v. City of Philadelphia, No. 08-cv01979 (E.D. Pa. Apr. 28, 2008)); id. at 540 (commenting that as of 2015, there were no cases
involving state court enforcement of a federal prisoners’ rights settlement agreement).

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B. Entering Into Court-Enforced Relief
Under the PLRA, courts’ authority to approve and enforce settlements has
been severely restricted. Prospective relief resulting from either settlement or
litigation “shall extend no further than necessary to correct the violation of the
Federal right of a particular plaintiff or plaintiffs.” 83 Indeed, a court “shall not
grant or approve any prospective relief unless the court finds that such relief is
narrowly drawn, extends no further than necessary to correct the violation of the
Federal right, and is the least intrusive means necessary to correct the violation
of the Federal right” (also known as the “need-narrowness-intrusiveness”
provision). 84 And prospective relief is broadly defined to include “all relief other
than compensatory monetary damages.” 85
These provisions are a far cry from the broad leeway courts are generally
given when approving settlements. 86 As the Supreme Court has explained,
parties can generally settle on their own terms as long as those terms are not
illegal or outside the general scope of the pleadings or the court’s subject matter
jurisdiction. 87 In traditional settlements, therefore, parties often enter into
injunctive settlements, at least in part, to avoid findings of liability and publicity
otherwise. 88 In contrast, under the PLRA, courts can only approve prospective
relief where there is a finding of liability (i.e., “violation of [a] Federal right”). 89
This seemingly turns the incentives for settlement on their head, and thus could
have led to many more “private settlement agreements,” without continuing
court involvement. 90
However, instead of relinquishing the opportunity for ongoing court
enforcement and moving to “private settlement agreements,” practitioners have
83. 18 U.S.C. § 3626(a)(1)(A) (2018).
84.
Id. See also Boston, supra note 73, at 445 (discussing
“need/narrowness/intrusiveness” findings); Prisoners’ Rights Lawyers’ Strategies, supra note
65, at 528 (referring to 18 U.S.C. § 3626(a)(1)(A) as the “need-narrowness-intrusiveness
finding”).
85. 18 U.S.C. § 3626(g)(7) (2018).
86. Such provisions are a less significant departure for litigated consent decrees. See
Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 526-27 n.25 (noting that “[c]ourts
have . . . commented that the PLRA does not change [ordinary rules governing contested entry
of injunctions in federal court] for litigated relief,” and citing Gilmore v. California, 220 F.3d
987, 1006 (9th Cir. 2000) and Smith v. Arkansas Dep’t. of Corr., 103 F.3d 637, 647 (8th Cir.
1996)).
87. Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525
(1986) (internal citations omitted) (stating that consent decrees must generally “spring from
and serve to resolve a dispute within the court’s subject-matter jurisdiction[,] . . . come within
the general scope of the case made by the pleadings, . . . further the objectives of the law upon
which the complaint was based,” and be lawful; “[t]herefore, a federal court is not necessarily
barred from entering a consent decree merely because the decree provides broader relief than
the court could have awarded at trial”).
88. See Boston, supra note 73, at 445.
89. See 18 U.S.C. § 3626(a)(1)(A) (2018).
90. See supra notes 80-82.

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developed creative ways to comply with the PLRA while ensuring courts can
retain jurisdiction and enforce the agreements, often without expressly admitting
liability. 91 Professor Margo Schlanger has summarized seven types of commonly
negotiated provisions that district courts have found to pass muster. These
include: (1) stipulations citing to the relevant statutory provision, 18 U.S.C.
§ 3626(a)(1)(A); 92 (2) stipulations quoting the relevant statutory provision;93
(3) stipulations stating that the relief is necessary to correct the alleged
violation; 94 (4) stipulations expressly denying liability; 95 (5) stipulations stating
that the conditions necessitate remedy; 96 (6) stipulations explicitly recognizing a
violation of federal rights; 97 and (7) stipulations asking the court to make

91. See Boston, supra note 73, at 445 (noting that “[i]n practice, courts have been willing
to approve consent judgments that stipulate conclusorily to the required PLRA findings,
sometimes with significant reservations, and have not required evidentiary proceedings to
support the entry of such agreed orders”); see also Civil Rights Injunctions Over Time, supra
note 74, at 594-95 (“Probably even more prevalent, however, is a magic words strategy:
Participants report that ‘[i]n practice, parties who wish to settle agree to these findings and the
court approves them.’”); Alexander, supra note 79, at 1683-86 (discussing language in court
enforced consent decrees sufficient to comply with the PLRA).
92. Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 530 (citing Stipulation for
Injunctive Relief ¶ 149, Fussell v. Wilkinson, No. 03-cv-00704 (S.D. Ohio Nov. 22, 2005)
(“The court shall find that this Stipulation satisfies the requirements of 18
U.S.C.A § 3626(a)(1)(A) and shall retain jurisdiction to enforce its terms.”)).
93. Id. at 530 (citing Settlement Agreement ¶¶ J-K, Duffy v. Riveland, No. 92-cv-01596
(W.D. Wash. June 3, 1998) (“The parties stipulate, based upon the entire record, that the relief
set forth in this Settlement Agreement is narrowly drawn, extends no further than necessary to
correct violations of federal rights, and is the least intrusive means necessary to correct
violations of federal rights.”)).
94. Id. at 530 (citing Consent Decree, Order and Judgment Approving and Adopting
Proposed Settlement Agreement ¶ 11, Laurna Chief Goes Out v. Missoula, No. 12-cv-00155
(D. Mont. Oct. 31, 2013) (“The Court finds that the relief provided in the [Proposed Settlement
Agreement] is narrowly drawn and extends no further than necessary to correct the alleged
violation in conformance with the Prison Litigation Reform Act, 18 U.S.C. § [3626](a)(1).”)).
95. Id. at 531 (citing Order and Agreement ¶¶ 2-4, Etters v. Young, No. 09-ct-03187
(E.D.N.C. May 21, 2012) (quoting 18 U.S.C. § 3626(a)(1)(A) and stating, “[n]othing in this
Order and Agreement, including, specifically, the stipulation . . . constitutes an admission of
liability and undersigned Defendants . . . vigorously dispute that they have violated the federal
rights of Plaintiff . . . or any other adult female inmate . . . In entering into this settlement,
Defendants . . . make no admissions of liability to Plaintiff and voluntarily assume the
obligations set forth herein”)).
96. Id. at 531-32 (citing Consent Decree ¶¶ 10-12, United States v. Miami-Dade Cnty.,
No. 13-cv-21570 (S.D. Fla. May 1, 2013) (citing to 18 U.S.C. § 3626(a)(1)(A) and stating,
“For the purposes of this lawsuit only and in order to settle this matter, Defendants stipulate,
and this Court finds, that the conditions at the [Miami-Dade County Corrections and
Rehabilitation Department] Jail facilities necessitate the remedial measures contained in this
Agreement.”)).
97. Id. at 532-33 (citing Consent Decree ¶¶ 58-60, United States v. Clay Cnty., No. 97cv-00151 (M.D. Ga. Aug. 20, 1997) (quoting 18 U.S.C. § 3626(a)(1)(A) and stating, “For
purposes of this lawsuit only and in order to settle this matter, the Defendants stipulate that
they have violated certain federal rights of inmates as alleged in the pleadings.”)).

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findings required for prospective relief under 18 U.S.C. § 3626(a)(1)(A). 98
At least one court has also recognized that parties are free to enter into
stipulations that are then approved by the court, without the court making
particularized findings, even in the context of PLRA cases: “Of course, we do
not mean to suggest that the district court must conduct an evidentiary hearing
about or enter particularized findings concerning any facts or factors about which
there is not a dispute. The parties are free to make any concessions or enter into
any stipulations they deem appropriate.” 99
Having cleared the need-narrowness-intrusiveness hurdle, parties must soon
begin contemplating potential termination of the consent decree, given that
termination motions can be filed shortly after entry of a court-enforceable decree.
C. Terminating Court-Enforced Relief
The PLRA also attempts to limit court involvement when it comes to
termination of enforceable consent decrees. Specifically, the PLRA makes any
court-enforceable prospective relief in a prison or jail conditions case terminable
on a motion by the defendant or an intervenor as early as two years after relief is
entered, and every year thereafter until successful. 100 And a court must grant a
motion for termination unless “the court makes written findings based on the
record that prospective relief remains necessary to correct a current and ongoing
violation of the Federal right, extends no further than necessary to correct the
violation of the Federal right, and that the prospective relief is narrowly drawn
and the least intrusive means to correct the violation.” 101 Further, a motion to
terminate prospective relief automatically results in a stay of that relief after
thirty days. 102 In other words, irrespective of compliance with a consent decree,
after two years (and every year thereafter), a defendant or intervenor can move
to terminate the decree; this stays the very relief defendants have agreed to work
toward, and requires a court to make written findings about whether the decree
should continue based on the same criteria required to enter the decree two years
prior.
These termination criteria differ drastically from the standard procedures for
98. Id. at 533 (citing Joint Stipulations Supporting Resolution of Class Action ¶ 2,
Martinez v. Maketa, No. 10-cv-02242 (D. Colo. Mar. 28, 2011) (“Plaintiffs and Defendant
jointly stipulate that the Court should make the findings required for prospective relief under
18 U.S.C. § 3626(a)(1)(A) and issue a permanent injunction . . . .”)).
99. Cason v. Seckinger, 231 F.3d 777, 785 n.8 (11th Cir. 2000).
100. 18 U.S.C. § 3626(b)(1)(A) (2018) (“In any civil action with respect to prison
conditions in which prospective relief is ordered, such relief shall be terminable upon the
motion of any party or intervener . . . [two] years after the date the court granted or approved
the prospective relief; [or one] year after the date the court has entered an order denying
termination of prospective relief under this paragraph.”).
101. 18 U.S.C. § 3626(b)(3) (2018).
102. 18 U.S.C. § 3626(e)(2) (2018). Such an automatic stay can be postponed to take
effect after ninety days where good cause is shown. 18 U.S.C. § 3626(e)(3) (2018).

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terminating or modifying an injunction. The Supreme Court has made clear that
in non-PLRA cases, for both litigated and consented injunctions, complete or
partial relief from an injunction is proper when a defendant has “complied in
good faith with the [] decree since it was entered, and . . . the vestiges of past
[constitutional violations] have been eliminated to the extent practicable.” 103 In
the case of consent decrees, the Court has also emphasized that parties can “settle
[a] dispute over the proper remedy for constitutional violations that had been
found by undertaking to do more than the Constitution itself requires (almost any
affirmative decree beyond a directive to obey the Constitution necessarily does
that), but also more than what a court would have ordered absent the
settlement.” 104 For that reason, the Court has recognized the importance of
maintaining “the finality of such agreements,” because relitigating the merits of
a consent decree could “serve as a disincentive to negotiation of settlements in
institutional reform litigation.” 105
Thus, in contrast to the general incentives for negotiated settlements and
entry of consent decrees to remedy constitutional violations, the PLRA
seemingly does away with the finality of such agreements and incentives for
compliance. This opens the door to a flurry of side litigation as early as two years
after entry of the decree. Further, while in the normal course defendants must
comply with the terms of an injunction for it to be dissolved, defendants
operating under a post-PLRA consent decree can argue annually that there is no
ongoing constitutional violation, irrespective of the terms of settlement, which
are often broader than the constitutional floor. Such termination litigation can
delay or derail compliance with the problems the decree was designed to remedy.
Given these termination provisions, when surveying post-PLRA consent
decrees, I expected to see an abundance of termination motions filed by
defendants. That turns out not to be the case. Instead, similar to lawyers’ creative
thinking that allows courts to enforce consent decrees, plaintiffs’ lawyers have
also constructed provisions to modify the PLRA’s two-year termination
requirement. 106 Professor Schlanger has recognized that termination stipulations
take a number of forms, pointing to specific language in various cases. 107 Below,
I categorize the different types of termination provisions—substantial
compliance, extended termination timeframe, hybrid, and opt out—and provide
103. Missouri v. Jenkins, 515 U.S. 70, 89 (1995) (citing Bd. of Educ. v. Dowell, 498
U.S. 237, 249-50 (1991) (discussing relief from injunctions in the context of school
desegregation cases)). The Court has also recognized that parties may seek modification of a
decree “by showing either a significant change either in factual conditions or in law.” Rufo v.
Inmates of Suffolk Cty. Jail, 502 U.S. 367, 384 (1992).
104. Rufo, 502 U.S. at 389.
105. Id.
106. Although defendants’ motivations for entering into consent decrees that modify
the PLRA’s two-year timeframe differ from case to case, at least in some instances, defendants
understand that remedying the issues underlying the decree may take substantial time, and that
a longer timeframe may lead to more funding for remediation.
107. See Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 544-46.

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examples of nuances within each category. 108 These nuances are critical because
the language of the termination provision may determine whether termination
motions are ultimately filed. 109
1. Substantial compliance
Provisions in this category prescribe termination only upon “substantial
compliance” with the terms of the settlement for a period of time (e.g., one year).
This language seems to be more common in recent years, and helps ensure that
termination motions are not filed before compliance is achieved as contemplated
by the consent decree. For example, in a case involving inadequate mental health
and suicide prevention measures at a jail in Lake County, Indiana, the parties
stipulated: “This Agreement shall terminate when [Lake County Jail] has
achieved substantial compliance with the substantive provisions of this
Agreement and has maintained that substantial compliance for one (1) year.” 110
The parties also made clear that: “The DOJ, in its good faith discretion, will
determine whether Lake County has maintained substantial compliance for the
one year period and any finding of substantial compliance may not unreasonably
be withheld.” 111
Other parties operating under a “substantial compliance” framework allow
for more lenience with respect to timing of termination and which parties or
persons bear the burden of showing that substantial compliance has been
achieved. For example, in litigation about inadequate staffing, training, and
conditions at facilities in Hinds County, Mississippi, the parties stipulated:
This Agreement will terminate if the parties jointly stipulate that the County has
achieved and maintained substantial compliance with the Agreement for at least
108. While not an exhaustive search of all post-PLRA consent decrees involving court
enforcement and altered termination provisions, I surveyed over fifty such decrees from 1996
to the present in varying jurisdictions and in both prison and jail cases. The examples presented
here encapsulate the most common categories of provisions without attempting to capture
every variation that exists within one of these categories. Part IV.A below provides a detailed
description of how these cases were selected as well as additional data and insights gathered
from the survey of these fifty consent decrees.
109. See Part V below for examples of termination motions being filed despite
termination stipulations.
110. Lake Cnty. Jail Settlement Agreement at 28, United States v. Lake Cnty., No. 10cv-00476 (N.D. Ind. Dec. 3, 2010), ECF No. 9; see also Consent Injunction ¶ 56, Prison Legal
News v. Berkeley Cnty. Sheriff, No. 10-cv-02594 (D.S.C. Jan. 13, 2012), ECF No. 201 (in
case involving the denial of certain written literature to inmates, parties stipulated:
“Defendants shall not . . . file [a termination] motion until they have achieved a minimum of
one year of substantial compliance with the provisions of this Consent Injunction. If Plaintiffs
and the United States determine that Defendants have achieved one year of substantial
compliance with the provisions of this Consent Injunction, Plaintiffs and the United States will
not oppose a motion filed by Defendants seeking to modify or terminate this Consent
Injunction.”).
111. Lake Cnty. Jail Settlement Agreement at 28, United States v. Lake Cnty., No. 10cv-00476 (N.D. Ind. Dec. 3, 2010), ECF No. 9.

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two years, and the Court then enters an appropriate order terminating the
Agreement and dismissing jurisdiction . . . . [But] [i]f the parties do not jointly
stipulate to dismissal, the County may file a unilateral motion to dismiss. The
County may not file a unilateral motion to dismiss until this Agreement has been
in effect for at least two years. Unless otherwise directed by the Court, the
burden will be on the County to demonstrate that the County substantially
implemented each provision of the Agreement, and that such compliance was
maintained continuously for the two years prior to filing of the motion. 112

Thus, without the consent of plaintiffs, after two years, Hinds County could file
a termination motion, but would bear the burden of showing that it had
substantially complied with the settlement for a period of two years.
2. Extended termination timeframe
Another common approach is for parties to extend the two-year termination
timeframe to some number of additional years. The way these cases terminate
also varies depending on how the provision is constructed. Some parties use a
sunset clause: Once the specified number of years in the decree has run, the
decree simply terminates without court involvement. For example, in a case
brought by HIV-positive inmates challenging their segregation in an Alabama
facility, the parties stipulated:
Unless otherwise agreed in writing by the Parties or extended by Order of the
Court or unless a motion to extend the term of this Order is then pending, this
Order shall expire by its own terms at 12:00 p.m. (Central Daylight Savings
Time) on June 30, 2015. In the event that any such pending motion identified
above (as of June 30, 2015) is denied, this Order shall expire on the date on
which such motion is denied by the Court. 113

Other parties agree not to file termination motions until a certain amount of
time has passed. In an Arizona case challenging a facility’s policy of housing
inmates based on race, the parties agreed: “To allow time for the remedial
measures set forth in this Stipulation to be fully implemented, the parties shall
not move to terminate this Stipulation until at least November 1, 2023.” 114
112. Settlement Agreement between the U.S. and Hinds Cnty., Miss. Regarding the
Hinds Cnty. Jail ¶¶ 164-65, United States v. Hinds Cnty., No. 16-cv-00489 (S.D. Miss.
July 19, 2016), ECF No. 8-1 [hereinafter Hinds Settlement Agreement]; see also Consent
Decree at 125, United States v. Alabama, No. 15-cv-00368 (M.D. Ala. June 18, 2015), ECF
No. 11 (“This Agreement shall terminate when ADOC and Tutwiler have achieved substantial
compliance with all of the substantive provisions of this Agreement in three consecutive
Compliance Reports. The burden will be on ADOC and Tutwiler to demonstrate that they have
maintained substantial compliance with each of the provisions of this Agreement.”).
113. Stipulated Order ¶ 20, Henderson v. Thomas, No. 11-cv-00224 (M.D. Ala.
Sept. 30, 2013), ECF No. 306.
114. Stipulation for Order ¶ 51, Rudisill v. Ryan, No. 13-cv-01149 (D. Ariz. Dec. 22,
2015), ECF No. 114; see also Stipulation ¶ 37, Parsons v. Ryan, No. 12-cv-00601 (D. Ariz.
Oct. 14, 2014), ECF No. 1185 (“To allow time for the remedial measures set forth in this
Stipulation to be fully implemented, the parties shall not move to terminate this Stipulation for
a period of four years from the date of its approval by the Court.”).

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Similarly, in a California case involving inmates with disabilities, the parties
stipulated: “This Agreement shall remain in effect for three (3) years from the
Effective Date, after which time its provisions will automatically terminate
unless the Court determines that, based on applicable law and specific findings
of fact, [] it is necessary to extend the duration of this Agreement.” 115
3. Hybrid
Still other parties choose a hybrid model that includes both a substantial
compliance component as well as an extended timeframe. For example, in a case
related to medical care at a women’s prison in Virginia, the parties agreed to
termination after one year of substantial compliance, but not before three years
from entry of the settlement agreement:
This Settlement Agreement shall terminate as of the date on which the
Defendant has achieved substantial compliance with all elements of
performance of its obligations to provide constitutionally-adequate medical care
under the Eighth Amendment, subject to the Compliance Monitor’s evaluation
under this Settlement Agreement, and has consistently maintained such
substantial compliance for a period of one year, provided, however, that the
termination may not take effect less than three years from the Effective Date
unless the Parties, by and through their respective counsel, mutually agree to
termination within a shorter period of time. 116

Here, determination of compliance was also put into the hands of a thirdparty monitor rather than one of the parties.
In another type of hybrid model, the parties agree to terminate upon
substantial compliance unless a certain number of years pass, at which point the
decree terminates. For example, in a case involving numerous conditions issues
at a New Jersey jail, the parties stipulated:
Once Defendants achieve Substantial Compliance for each of the five (5)
Compliance Categories for three (3) successive inspections, or five (5) years
from the date of the Settlement Agreement, whichever comes first, the
Settlement Agreement will terminate. At such time, Plaintiffs will have no
further right to enforce the terms of the Settlement Agreement and the Court
shall no longer retain jurisdiction, if any, over the enforcement of such
Agreement. 117

In yet another hybrid model, in a class action involving conditions for deaf
and hard of hearing inmates, the parties agreed that:
The Court shall retain such jurisdiction over this matter, including to interpret
and enforce this Settlement Agreement, and enter appropriate orders requiring
115. Settlement Agreement at 19, Johnson v. L.A. Cnty. Sheriff’s Dep’t., No. 08-cv03515 (C.D. Cal. Mar. 24, 2015), ECF No. 210-2.
116. Settlement Agreement at 26, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Sept. 15,
2015), ECF No. 221-1.
117. Settlement Agreement and Order at 17, Colon v. Passaic Cnty., No. 08-cv-04439
(D.N.J. Jan. 6, 2012), ECF No. 94-1.

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compliance with the Agreement, for not less than two years following the
Effective Date. If the Court finds that, during the two years following the
Effective Date, IDOC has failed to show that it is in substantial compliance with
any portion of this Settlement Agreement, then the Court will extend the period
of its jurisdiction to supervise and enforce any such portion of this Settlement
Agreement, until IDOC shows it has achieved substantial compliance, for a
period of time not to exceed two additional years. 118

4. Opt Out
Shortly after passage of the PLRA, a few parties opted out of any timeframe
for termination altogether. For example, in a 1997 settlement related to
conditions issues stemming from gross overcrowding in a facility in Bernalillo
County, New Mexico, the parties stipulated: “Defendants agree to file no motion
in the future asserting that this Settlement Agreement should be terminated based
upon the provisions of the PLRA.” 119 But in a 2016 settlement that altered the
original termination stipulation, the parties agreed to a specific timeframe after
which defendants could file for termination: “Two years after the Court enters
this Settlement Agreement, the County Defendants will reacquire the right to file
motions under the Prison Litigation Reform Act.” 120
Similarly, in a case involving conditions of confinement issues at a jail in
Bonneville County, Idaho, the parties’ initial 1997 consent decree stipulated:
This Consent Decree, Order and Judgment shall be ongoing in nature and shall
continue in full force and effect and the parties expressly recognize and stipulate
to the continuing jurisdiction of this Court for the limited purpose of carrying
out the intent of this Consent Decree, Order and Judgment until the County
completes construction of and has a new jail facility fully operational. 121

A few months later in a supplemental agreement, the parties agreed to a more
definitive termination provision:
This Agreement shall continue in full force and effect and the parties to this
Agreement recognize and submit to the continuing jurisdiction of this Court for
the limited purpose of carrying out the intent of this Agreement for a period of
one (1) calendar year from and after the date of the approval hereof by the Court,
unless the parties hereto earlier stipulate or it is determined by Order of the
Court that the provisions of this Agreement have been satisfactorily
implemented at an earlier date and that continuing jurisdiction of this Court is
no longer necessary. 122
118. Stipulation of Settlement at 39, Holmes v. Godinez, No. 11-cv-02961 (N.D. Ill.
Apr. 23, 2018), ECF No. 446-2.
119. Order Regarding the Prison Litig. Reform Act at 6, McClendon v. City of
Albuquerque, No. 95-cv-00024 (D.N.M. Nov. 5, 1996), ECF No. 225.
120. Settlement Agreement at 14, McClendon v. City of Albuquerque, No. 95-cv-00024
(D.N.M. Mar. 22, 2016), ECF No. 1213-1.
121. Consent Decree, Order and Judgment at 5, Makinson v. Bonneville Cnty., No. 97cv-00190 (D. Idaho May 16, 1997), ECF No. 3.
122. Second Supplemental Agreement between Bonneville Cnty. and Pls. Regarding

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Opting out of a termination timeframe is the least common means of altering
the PLRA’s two-year termination provision, and even when such provisions are
initially contemplated, they are often later abandoned for a more specific
termination provision. 123
IV. THE IMPORTANCE OF INJUNCTIVE PRACTICE IN ACHIEVING COMPLIANCE
WITH POST-PLRA CONSENT DECREES
A. Achieving Compliance
Having now explored the particulars of prospective injunctive relief in the
context of the PLRA, the question remains: despite lawyers’ creative strategies
for crafting post-PLRA consent decrees, are prisons complying with these
decrees? And what involvement, if any, do courts have in enforcing consent
decrees and stemming constitutional violations in prison reform cases? A survey
of fifty post-PLRA consent decrees suggests that while achieving compliance is
often fraught, courts can play a vital role in helping parties remediate disputes
and move toward compliance.
The fifty decrees encompassed in the survey include all relevant jail and
prison consent decrees in the “Post-PLRA Enforceable Consent Decrees” special
collection of the Civil Rights Litigation Clearinghouse (“Clearinghouse”) (thirtyeight in total), 124 as well as a handful of additional decrees entered into in the
past ten years (twelve in total). 125 The twelve additional decrees were chosen by
year, without reference to substance, so as not to preordain the results of the
survey. These cases include: one case from 2019, two cases from each year in
the 2015-2018 timespan, and one case from each year in the 2010-2013 timespan,
Consent Decree on File Herein at 16, Makinson v. Bonneville Cnty., No. 97-cv-00190 (D.
Idaho June 14, 1999), ECF No. 7.
123. This conclusion is based on the survey of fifty post-PLRA consent decrees
discussed in Part IV below.
124. See Special Collection, Post-PLRA Enforceable Consent Decrees, C.R. LITIG.
CLEARINGHOUSE, https://perma.cc/AD4B-KVT2 (archived June 9, 2021). Although there
were fifty-three cases in the “Post-PLRA Enforceable Consent Decrees” special collection of
the Clearinghouse as of January 2021, cases involving juvenile facilities, immigration
facilities, mental health facilities, state court enforcement or private settlements, and unclear
termination status were removed, bringing the total number of Clearinghouse cases used for
this survey to thirty-eight. Further, the Clearinghouse consent decrees only capture cases that
have made it past the PLRA’s initial hurdles (e.g., exhaustion of administrative remedies and
filing fees, even for individuals proceeding in forma pauperis), and that have been approved
by a court, which can be difficult to achieve under the PLRA. See supra Part III.B.
125. The twelve additional decrees can also be found in the Clearinghouse, but as of
January 2021 they were not contained in the “Post-PLRA Enforceable Consent Decrees”
special collection. For purposes of this survey, there is no meaningful difference between those
decrees contained in the special collection and those outside that collection. Rather, I chose to
include a handful of additional decrees to ensure a robust sample for purposes of discussing
compliance under court enforceable post-PLRA decrees.

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with 2014 and 2011 being excluded because no 2014 or 2011 decrees outside
those in the Clearinghouse were found. Although this is by no means an
exhaustive list of post-PLRA consent decrees, it provides a sample for purposes
of discussing compliance under court enforceable post-PLRA decrees. 126
Of the fifty cases surveyed, twenty-three (46%) have required court
involvement to help the decree move forward. 127 These twenty-three cases
include court involvement in: contested termination motions, enforcement
motions, contempt/sanctions motions, extension of termination timeframes, and
modification of consent decrees. In many cases, court involvement was required
for more than one of these categories. 128 Thus by absolute numbers, there are
eleven cases with contested termination motions, 129 seventeen cases with
enforcement motions, thirteen cases with contempt/sanctions motions, eight
cases in which the termination timeframe was extended with court involvement,
and fourteen cases in which the decree was modified with court involvement. 130
One other way to look at the data is by terminated versus ongoing decrees.
Of the fifty cases, twenty-three have terminated, while twenty-seven are
ongoing. 131 And four of the twenty-three terminated cases required court
involvement, 132 while nineteen of the twenty-seven ongoing cases have required
court involvement. 133 This suggests that court enforcement can be key to parties
accomplishing reforms set out in a consent decree. But should courts be in the
business of enforcing consent decrees in prison reform cases?
B. Role of the Courts
Whether courts are appropriate vehicles for structural reform litigation
126. See Appendix at https://perma.cc/N2WA-NWU9 for a chart with case names, case
numbers, and information supporting the statistics in the following two paragraphs. The
statistics in the Appendix reflect the state of each case as of January 2021.
127. Id. Some of the cases outside this 46% are ongoing, so court involvement could
become necessary in the future. See below for a discussion of the number of ongoing vs.
terminated cases.
128. Id.
129. Interestingly, while termination motions were filed in eleven of the fifty cases, only
three such cases were filed in the last ten years. Although it is difficult to determine exactly
why fewer termination motions are filed in newer cases, a few reasons for this may include:
the decrees have not yet matured to the point where filing termination motions would be
fruitful, newer decrees tend to be narrower in scope, practitioners have crafted decrees that
require a period of substantial compliance before termination can be sought, and in some cases
prisons and jails find the decrees helpful for either remedying conditions of confinement or
obtaining funding for remediation.
130. One other interesting piece of data is whether the cases in this survey involved
compliance monitors. Thirty of the fifty cases have had a monitor or other expert involved in
compliance oversight, and of the eleven cases in which termination motions were filed, eight
involved a monitor at some point during the case.
131. See Appendix at https://perma.cc/N2WA-NWU9.
132. Id.
133. Id.

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(sometimes called “institutional reform litigation”) has been a hotly debated
topic for years. 134 As civil rights lawyers began engaging the courts to challenge
prison conditions in the late 1960s, Professors Abram Chayes and Owen Fiss
kicked off the debate in this arena by defending civil rights injunctions in the
face of legal philosopher Lon Fuller’s reservations about the role of litigation. 135
More recently, Malcolm M. Feeley and Edward L. Rubin’s seminal work on the
intersection of prisons and courts defends “prison reform cases”—those
involving injunctive actions brought pursuant to the Eighth Amendment 136—
asserting that policy making is a routine judicial task and one that should be
regarded as ordinary and legitimate. 137
Judges have also defended their role in at least certain types of prison reform
cases. After finding that state penitentiary treatment and conditions in Texas
were unconstitutionally cruel in Ruiz v. Estelle, Judge William Wayne Justice of
the Eastern District of Texas explained: “[T]he procedural structure that most
assume is the ordinary way in which courts operate is inadequate as a means of
making sense of the operation of a court . . . in proceedings in which the remedy
is complex and requires continual judicial superintendence long after the
judgment is entered.” 138
Other scholars have looked at courts in the context of political institutions
that could potentially enforce the Constitution in prison conditions cases. The
question then becomes not whether courts are the best forum for handling prison
reform, but whether, as compared to other institutions, courts should play a role
134. Susan Poser, What’s A Judge To Do? Remedying the Remedy in Institutional
Reform Litigation, 102 MICH. L. REV. 1307, 1307 (2004) (recognizing in 2004 the “now nearly
thirty-years old” question of “whether judges have the legitimacy and the capacity to oversee
the remedial phase of institutional reform litigation”).
135. Id. at 1307-08 (listing contributors to the scholarly debate, with Abram Chayes,
Owen Fiss, Malcom Feeley, and Edward Rubin arguing “that the proper role of judges is to
remedy rights violations and that judges possess the legitimate institutional authority to order
structural injunctions,” while Lon Fuller, Donald Horowitz, William Fletcher, Gerald
Rosenberg, Ross Sandler and David Schoenbrod “disapprove of active judicial involvement
in structural remedies on the basis of either lack of legitimacy, lack of capacity, or both”); see
also Margo Schlanger, Beyond the Hero Judge: Institutional Reform Litigation as Litigation,
97 MICH. L. REV. 1994, 199-96 (1999) [hereinafter Institutional Reform Litigation] (citing
various works by Abram Chayes and Owen M. Fiss and stating that Abram Chayes and Owen
Fiss, writing in the 1970s, “set the terms of the scholarly debate . . . in opposition to Lon
Fuller’s vision of private dispute resolution by adversarial litigation”).
136. Institutional Reform Litigation, supra note 135, at 2005 (“When Feeley and Rubin
talk about ‘prison reform cases,’ they mean the kinds of cases that are discussed in their five
case studies—injunctive actions brought pursuant to the Eighth Amendment.”).
137. FEELEY & RUBIN, supra note 49, at 1-5.
138. William Wayne Justice, The Origins of Ruiz v. Estelle, 43 STAN. L. REV. 1, 8
(1990) (delivering a speech at Stanford’s commencement on the origins of Ruiz v. Estelle after
ordering consolidation of prisoner complaints into a class action, finding counsel for the
plaintiff class, ordering the U.S. Department of Justice to appear as amicus curiae, and
subsequently finding that state penitentiary treatment and conditions in Texas were
unconstitutionally cruel).

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in enforcing constitutional conditions of confinement. Erwin Chemerinsky has
explained:
[I]n some instances the courts are the only entity with the will to enforce the
Constitution. The political branches have inadequate incentives to comply with
the Constitution when rights of prisoners are violated. Unless judges act,
constitutional violations in prisons will go unremedied. In fact, without the
threat of judicial enforcement, legislatures and prison officials have little reason
other than human decency to keep prison conditions in compliance with
Constitutional requirements. Courts can and do make a difference.” 139

Rubin and Feeley similarly ask whether a particular institution is “adequate”
for the task, recognizing that although other institutions may be competent at
addressing a particular issue, they may lack the political will to use those
competencies. 140
Still other scholars have attempted to contextualize the role of the judiciary
in prison reform litigation by looking at the limits on courts as well as the
litigation factors at play beyond the role of the judge. One such scholar has
recognized that it is not only the judge that is important to the question, but the
“significance of the larger context . . . of the litigation.” 141 Specifically, “the
rules of litigation largely confine judicial response to the record developed and
the arguments presented by the parties; for a plaintiff’s judgment, there must be
a connection between the order a court issues and the claims, evidence, and
requested relief plaintiffs’ counsel submits.” 142 For this reason, “unlike efforts to
urge new executive or legislative policy, litigation gives those seeking change a
formal and unique ability to shape the contest.” 143
While questions of whether courts are the best or an adequate forum for
prison reform cases are beyond the scope of this Article, it is clear that appealing
to institutions other than courts to remedy unconstitutional conditions of
confinement has been futile. 144 Thus, as long as the PLRA remains in effect, it is
important to understand the role courts play in curbing constitutional violations
in prisons despite the PLRA’s constraints on litigation.

139. Chemerinsky, supra note 11, at 311-12; see also Zyl Smit, supra note 24, at 55152 (“A general reason for the courts to intervene, to an extent that would perhaps not be
considered necessary or appropriate elsewhere, has to do with the paralysis of other political
avenues for reshaping prison policy in order to produce acceptable prison conditions.”).
140. Edward L. Rubin & Malcolm M. Feeley, Judicial Policy Making and Litigation
Against the Government, 5 U. PA. J. CONST. L. 617, 636 (2003). See also Bailey W. Heaps,
Note, The Most Adequate Branch: Courts as Competent Prison Reformers, 9 STAN. J. C.R. &
C.L. 281, 291-92 (2013).
141. Institutional Reform Litigation, supra note 135, at 1999-2000.
142. Id. at 2015.
143. Id.; see also Chemerinsky, supra note 11, at 313-16 (stating that courts can make
a difference in prison conditions cases, but recognizing and laying out ways that “courts are
also limited in what they can do”).
144. See, e.g., Chemerinsky, supra note 11, at 311-12; van Zyl Smit, supra note 24, at
551-52.

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C. Case Studies: Court Involvement in Achieving Compliance
The following case studies demonstrate some of the ways courts have helped
parties achieve compliance in prison reform cases. 145 These case studies are not
meant to be an exhaustive list of the ways courts can help stem constitutional
violations under post-PLRA consent decrees, but rather a collection of some of
the ways courts have played an important role in doing so. 146 Nor are these case
studies meant to suggest an endorsement of or a best course of action for
plaintiffs to achieve compliance with settlement terms. Indeed, given the varying
complexity of decrees, the human actors at play, the geography of a particular
facility, the language of a particular consent decree, etc., there is no one-sizefits-all strategy. Instead, these case studies demonstrate that under the right
circumstances, plaintiffs can achieve compliance with settlement terms without
a flurry of side litigation, and that courts, through a variety of tactics, can help in
that process. In other words, despite the PLRA tamping down on court
involvement in prison conditions cases, injunctive practice has, to some extent,
adapted and rebounded to continue the vital work of stemming constitutional
violations in prisons.
1. Case study 1—Written opinion of the Court
In some cases, the tone a court sets—including the court’s level of
engagement with compliance or the pressure it puts on parties in public forums
such as status conferences or written opinions—can become a factor in whether
parties move toward compliance and/or whether termination motions are filed
145. As the fifty-decree survey above makes clear, parties do not consistently require
court involvement to achieve compliance. Indeed, although parties may enter into a consent
decree that provides for court enforcement, they may not require court involvement to achieve
compliance. See, e.g., Henderson v. Thomas, No. 11-cv-00224 (M.D. Ala. Mar. 28, 2011)
(agreeing to sunset clause and terminating with little court involvement pursuant to such
clause); Long v. Pickell, No. 16-cv-10842 (E.D. Mich. Mar. 8, 2016) (decree terminating with
little court involvement pursuant to one-year sunset clause); Bumgarner v. N.C. Dep’t. of
Corr., No. 10-ct-03166 (E.D.N.C. Sept. 17, 2010) (decree terminating with little court
involvement pursuant to two-year sunset clause). This is encouraging in its own right, but not
the focus of this section. Rather, these case studies demonstrate that court involvement can
help spur compliance. They may also help lawyers and courts consider the most effective ways
to encourage compliance in a variety of cases.
146. These case studies include only consent decrees entered into after the passage of
the PLRA. For consent decrees entered into pre-PLRA, 18 U.S.C. § 3626(b) has had
significant consequences. For example, 18 U.S.C. § 3626(b)(2) entitles a defendant or
intervenor to “immediate termination of any prospective relief if the relief was approved or
granted in the absence of a finding by the court that the relief is narrowly drawn, extends no
further than necessary to correct the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right.” In practice, this meant that
between 1996 and 2000, a large number of jurisdictions filed termination motions, and legal
protections obtained through years of labor were swiftly swept away. Civil Rights Injunctions
Over Time, supra note 74, at 591; Boston, supra note 73, at 447.

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prior to compliance. This is exemplified in United States v. Hinds County, where
an ongoing decree related to conditions of confinement at facilities in Hinds
County, Mississippi was assigned to a new judge who made clear that anything
less than full compliance would not be tolerated. 147
To comply with the PLRA’s need-narrowness-intrusiveness requirement,
the consent decree included a stipulation asserting compliance with and quoting
the relevant PLRA provision. 148 The agreement also provided for termination
upon a joint motion of the parties after two years of substantial compliance, or a
unilateral motion by the County no sooner than two years after the decree went
into effect, with the burden on the County to demonstrate substantial compliance
for two years before filing for termination. 149 The court approved the settlement
agreement in July 2016 in a perfunctory one-page order, and retained jurisdiction
to enforce the agreement. 150 The County began working toward compliance, and
a status report filed in August 2017 reported that “[p]rogress had been made in a
number of areas,” including hiring a Compliance Coordinator dedicated to
addressing the court-appointed monitor’s recommendations and devoting
resources to improve staffing concerns . 151
The case was reassigned to Judge Carlton Reeves in December 2018. 152 And
147. See generally No. 16-cv-00489 (S.D. Miss. June 23, 2016). During an
investigation into conditions of confinement, DOJ found, among other things, that the relevant
facilities in Hinds County were chronically understaffed; that staff was inadequately trained
and supervised; that staff failed to supervise inmates with a history of violence, mental illness,
or suicide attempts; and that inmates were frequently subjected to excessive force.
148. Hinds Settlement Agreement, supra note 112, ¶¶ 166-67 (“The United States and
the County stipulate and agree that this Agreement complies in all respects with the
requirements for prospective relief under the Prison Litigation Reform Act, 18 U.S.C.
§ 3626(a). The United States and the County stipulate and agree that all of the prospective
relief in this Agreement is narrowly drawn, extends no further than necessary to correct the
violations of federal rights as set forth by the United States in its Complaint and Findings
Letter, is the least intrusive means necessary to correct these violations, and will not have any
adverse impact on public safety or the operation of a criminal justice system.”).
149. Id. ¶¶ 164-65 (“This Agreement will terminate if the parties jointly stipulate that
the County has achieved and maintained substantial compliance with the Agreement for at
least two years, and the Court then enters an appropriate order terminating the Agreement and
dismissing jurisdiction. If the parties do not jointly stipulate to dismissal, the County may file
a unilateral motion to dismiss. The County may not file a unilateral motion to dismiss until
this Agreement has been in effect for at least two years. Unless otherwise directed by the
Court, the burden will be on the County to demonstrate that the County substantially
implemented each provision of the Agreement, and that such compliance was maintained
continuously for the two years prior to filing of the motion.”).
150. Order at 1-2, United States v. Hinds Cnty., No. 16-cv-00489 (S.D. Miss. July 19,
2016), ECF No. 8; see also Hinds Settlement Agreement, supra note 112, ¶¶ 162-63
(specifying that court will retain jurisdiction to enforcement the settlement agreement).
151. Court-Appointed Monitor’s Second Monitoring Report at 2, United States v. Hinds
Cnty., No. 16-cv-00489 (S.D. Miss. Aug. 23, 2017), ECF No. 16.
152. Order Reassigning Case, United States v. Hinds Cnty., No. 16-cv-00489 (S.D.
Miss. Dec. 17, 2018), ECF No. 25. Judge Reeves was appointed by President Barack Obama
in 2010 and is the second African American to serve as a federal judge in Mississippi. He is

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in June 2019, the United States filed a motion for an order to show cause why
defendants should not be held in contempt for their lack of progress toward
compliance. 153 The court granted the motion and agreed to set a date for a hearing
on the motion, but the parties subsequently filed a joint motion for settlement in
December 2019. 154 The joint motion did not replace the original decree, but
rather provided short- and long-term steps the County agreed to undertake to
comply with the original settlement agreement. 155 The court held a hearing on
the proposed settlement and expressed extreme concern and interest that the
County comply with terms of the settlement agreements:
When this case was reassigned to me . . . I ordered the parties to come forward
and had a status conference to let you all know that I would be taking a central
focus in making sure that this case moves along as it should, and I expressed
concern. We had another status conference here after the monitor submitted
their next report. I expressed concern . . . I took it upon myself to go to the
facility itself back in August. Again, since then . . . even after I have notified
the county and the United States of the importance of this case to me and the
interest that I took in it and how I was so concerned about some of the matters,
there’s still stuff that was left out of the self-reporting . . . . What the Court
cannot tolerate . . . is flagrant violations of its orders. And I’ve adopted Judge
Barbour’s order . . . from 2016, and I have been . . . trying to make sure that that
order is complied with throughout this year . . . . I’m involved now. I’m fully
engaged and we’re moving forward. 156

The court approved the new settlement agreement in January 2019, but
called out the County’s non-compliance in a twelve-page opinion:
Allowing the County to move forward without facing accountability is
concerning given the extent of the County’s failings. At least one prisoner has
died, and numerous others have been stabbed, brutally beaten, and assaulted
while the County failed to meet the terms to which it agreed . . . . These kinds
of conditions, here and elsewhere, create the environment for local communities
to call into question our very system of criminal justice. Calls to shut down
prisons are being made here in Mississippi and across the country. Given
failures of those trusted to oversee and ensure the constitutionality of our jails
and prisons, as seen in the instant case with Hinds County, the views held by
prison abolitionists are resonating with a growing number . . . .

the author of a number of groundbreaking decisions, including Campaign for Southern
Equality v. Bryant, which struck down Mississippi’s same-sex marriage ban, and Jackson
Women’s Health Organization v. Currier, which struck down a state law banning abortion
after fifteen weeks of pregnancy. 64 F. Supp. 3d 906 (S.D. Miss 2014); 349 F. Supp. 3d 536
(S.D. Miss. 2018).
153. United States’ Mot. Order to Show Cause Why Defs. Should Not Be Held in
Contempt, United States v. Hinds Cnty., No. 16-cv-00489 (S.D. Miss. June 24, 2019), ECF
Nos. 30-31.
154. Joint Mot. for Settlement Entry of Stipulated Order, United States v. Hinds Cnty.,
No. 16-cv-00489 (S.D. Miss. Dec. 16, 2019), ECF Nos. 53-54.
155. See Settlement Conference Tr. at 5, United States v. Hinds Cnty., No. 16-cv-00489
(S.D. Miss. Dec. 17, 2019), ECF No. 55.
156. Id. at 7-8, 100.

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While a finding of contempt is warranted, the parties’ stipulated order outlines
what is perhaps the most comprehensive remedial plan for Hinds County to
become compliant that the Court has seen from the parties . . . . However, the
Court reminds the parties that “[o]nce invoked, ‘the scope of a district court’s
equitable powers . . . is broad, for breadth and flexibility are inherent in
equitable remedies.’” Brown v. Plata, 563 U.S. 493, 538 (2011) (citation
omitted). This Court will do whatever it takes within the confines of the law to
ensure the parties follow the Consent Decree and we finally see an end to the
violence and neglect that has plagued the Jail all these years. 157

While it remains to be seen whether substantial compliance is achieved,
dedicated court involvement in this case has certainly increased the odds that
compliance will occur and termination motions will not be filed.
2. Case study 2—Enforcement motions
In other cases, judges have taken an active role in response to enforcement
motions filed by plaintiffs. For example, in Scott v. Clarke, the judge worked
with the parties to craft an injunction that included specific directives about how
compliance should be achieved. 158
The case began in 2012, when prisoners at Fluvanna Correctional Center for
Women (“FCCW”) in Virginia filed a class action lawsuit alleging insufficient
medical care in violation of the Eighth Amendment. 159 After extensive
discovery, and Judge Norman Moon 160 denying defendants’ motion for summary
judgment while granting plaintiffs’ motion for partial summary judgment, 161 the
parties entered into a consent decree. 162 The decree provided for comprehensive
changes to the medical care system at the prison, and a monitor to oversee
implementation. 163 The court retained jurisdiction to enforce the agreement. 164
The parties stipulated that they met the need-narrowness-intrusiveness
provision by paraphrasing and referencing the relevant PLRA provision. 165 And
157. Order at 10-12, United States v. Hinds Cnty., No. 16-cv-00489 (S.D. Miss. Jan. 16,
2020), ECF No. 60 (emphasis added).
158. See generally No. 12-cv-00036 (W.D. Va. Jul. 24, 2012).
159. Compl. for Declaratory and Injunctive Relief, Scott v. Clarke ¶ 1, No. 12-cv-00036
(W.D. Va. Jul. 24, 2012), ECF No. 1; see also First Am. Compl. for Declaratory and Injunctive
Relief ¶ 1, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Feb. 6, 2013), ECF No. 39; Second
Am. Compl. for Declaratory and Injunctive Relief ¶ 1, Scott v. Clarke, No. 12-cv-00036
(W.D. Va. Jul. 15, 2013), ECF No. 58.
160. Judge Moon was appointed by President Bill Clinton in 1997.
161. Scott v. Clarke, 64 F. Supp. 3d 813, 815 (W.D. Va. 2014).
162. Settlement Agreement, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Sept. 15,
2015), ECF No. 221-1.
163. Id. at 5-23.
164. Final J. Order at 2, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Feb. 5, 2016), ECF
No. 262; Findings of Fact and Conclusions of Law at 28-29, Scott v. Clarke, No. 12-cv-00036
(W.D. Va. Feb. 5, 2016), ECF No. 261.
165. Settlement Agreement at 27, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Sept. 15,
2015), ECF No. 221-1.

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they agreed to a hybrid approach for termination, specifying that termination
could occur upon one year of substantial compliance, as determined by the
compliance monitor, but not before three years, unless the parties jointly agreed
to an earlier termination date. 166
Approximately a year and a half into the agreement, plaintiffs filed a motion
for order to show cause why defendants should not be held in contempt for failing
to meet its obligations under the settlement agreement and requested an
evidentiary hearing. 167 After briefing on the motion and extensive discovery
motions in preparation for the contempt hearing, 168 the court held a week-long
bench trial in June 2018 and granted plaintiffs’ motion to show cause. 169
The court subsequently ordered an injunction to last for the duration of the
settlement agreement, making extensive findings of fact and law and directing
the parties to take specific steps within defined time periods to remedy
noncompliance. 170 The court found that: “the Settlement Agreement sets out
twenty-two standards governing FCCW. The Court concludes that Defendants
are in violation of eight of them. Indeed, the record shows that VDOC’s and
FCCW’s own officials had—by their own admission—actual knowledge that
FCCW was not complying with parts of the Settlement Agreement.” 171 The court
also determined that it would “craft its own injunctive order that more
appropriately tailors the relief in light of the Court’s findings and the evidence,”
but invited the parties to seek reconsideration of the relief tailored by the court

166. Id. at 26 (“This Settlement Agreement shall terminate as of the date on which the
Defendant has achieved substantial compliance with all . . . obligations to provide
constitutionally-adequate medical care under the Eighth Amendment, subject to the
Compliance Monitor’s evaluation under this Settlement Agreement, and has consistently
maintained such substantial compliance for a period of one year, provided, however, that the
termination may not take effect less than three years from the Effective Date unless the Parties,
by and through their respective counsel, mutually agree to termination within a shorter period
of time.”).
167. Pls.’ Mot. for Order to Show Cause Why Defendants Should Not be Held in
Contempt at 1-2, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. Sept. 5, 2017), ECF Nos. 26566.
168. Findings of Fact and Conclusions of Law at 4, Scott v. Clarke, No. 12-cv-00036
(W.D. Va. Jan. 2, 2019), ECF No. 544 (“For . . . several months, the volume and intensity of
discovery rivaled that of the hardest-fought merits litigation.”).
169. Oral Order, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. June 12, 2018), ECF
No. 495 (granting motion to show cause).
170. Injunction Order, Scott v. Clarke ¶¶ 5-12, 14, No. 12-cv-00036 (W.D. Va. Jan. 2,
2019), ECF No. 545 (For example, the court directed: “Within 14 days from the date of entry
of this injunction, Defendants shall place—in a conspicuous, well-known, and readily
available location in every FCCW building that houses at least one Plaintiff—the following
equipment: a backboard or stretcher; an oxygen tank and mask; and a suction machine.” And,
“[w]ithin 30 days from the date of entry of this injunction, Defendants shall develop a protocol
ensuring unimpeded access to timely medical care.”); Findings of Fact and Conclusions of
Law, supra note 168.
171. Findings of Fact and Conclusions of Law, supra note 168, at 33 (citation omitted).

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given the parties’ and the compliance monitor’s expertise. 172 To that end, both
plaintiffs and defendants filed motions to alter or amend judgment, 173 which the
court granted in part and denied in part. 174
Although the decree remains ongoing, the judge has set high expectations
for compliance by taking a decidedly active role in response to plaintiffs filing
an enforcement motion, acting as factfinder in a week-long trial, and
subsequently using such factual findings as the basis for an injunction. The court
also recognized its limits and thus solicited input on the injunction from the
parties. This may have helped with buy-in for compliance as well as ensuring the
injunction provided practical and workable solutions based on the parties’
experience on the ground. Such a hybrid approach encourages compliance while
sending a clear signal that lack of compliance is a nonstarter. The parties thus
continue to work toward compliance without the premature filing of termination
motions.
3. Case study 3—Remediation of noncompliance
In yet other cases, upon signs of noncompliance courts have encouraged
remediation, preempting the filing of enforcement or contempt motions and
lengthy hearings on such motions that may ensue. Hunter v. Beshear is one such
case; it challenged the prolonged housing of individuals awaiting court-ordered
competency determinations in county jails, which are ill-equipped to care for
individuals with mental illness and intellectual disabilities. 175
After proceeding to mediation, the parties settled, and in approving the final
settlement, the court found that the decree met the PLRA’s need-narrownessintrusiveness requirement. 176 The parties used a hybrid model for termination
provisions, stipulating that the agreement would terminate after three years,
unless substantial compliance was not achieved for at least nine consecutive
months preceding the end date of the agreement, at which point plaintiffs would
file a motion to extend jurisdiction and monitoring, and the court would
172. Id. at 50-51.
173. Pls.’ Mot. to Alter or Amend J., Scott v. Clarke, No. 12-cv-00036 (W.D. Va.
Jan. 30, 2019), ECF No. 554; Defs.’ Mot. Pursuant to Rule 59(e), Scott v. Clarke, No. 12-cv00036 (W.D. Va. Jan. 30, 2019), ECF No. 556.
174. Am. Inj. ¶¶ 1-2, Scott v. Clarke, No. 12-cv-00036 (W.D. Va. May 22, 2019), ECF
No. 574; Mem. Opinion and Additional Findings of Fact and Conclusions of Law at 11,
Scott v. Clarke, No. 12-cv-00036 (W.D. Va. May 22, 2019), ECF No. 573.
175. Compl., Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Sept. 30, 2016), ECF
No. 1. See also First Am. Compl., Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Dec. 23,
2016), ECF No. 26.
176. Final Settlement Approval Opinion and Order at 65-66 n.5, Hunter v. Beshear,
No. 16-cv-00798 (M.D. Ala. Jan. 25, 2018), ECF No. 93 (“[T]he court believes that the
settlement meets the PLRA’s three central requirements: that ‘relief is narrowly drawn,
extends no further than necessary to correct the violation of the Federal right, and is the least
intrusive means necessary to correct the violation of the Federal right.’”).

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determine whether substantial compliance had been achieved. 177 If substantial
compliance was not achieved, the court could maintain jurisdiction for a period
of time determined by the court. 178 The agreement also permitted the defendant
to file a motion to terminate after three years, but maintained that the defendant
would bear the burden of proof to “demonstrate that termination is
appropriate.” 179
A year after entering into the settlement, the parties filed a joint status report
with the court, noting several areas of non-compliance. 180 At a status conference
a month later, Judge Myron Thompson 181 urged the parties to attempt to
remediate noncompliance in lieu of filing for contempt. 182 The parties took this
urging seriously, submitting a proposed order on the status of noncompliance,
which provided for the engagement of a compliance consultant and the
development of a remedial plan thereafter. 183 After reviewing the consultant’s
reports and recommendations, the court ordered the defendant to prepare a
remedial plan. But the plaintiffs objected to the defendant’s remediation plan
because it lacked details and crucial requirements that would lead to
compliance. 184 With the court’s permission, the parties crafted a joint
remediation plan, which extended the court’s initial oversight period from three
years to four years, and delineated more specific requirements, targets, and goals
to provide the defendant with a viable path to reach compliance. 185 Most
recently, the parties agreed to a further extension of the decree by an additional
year and the court ordered the defendant to prepare another remediation plan to
address continued decencies. 186
Thus, upon a report of noncompliance, the court guided the parties toward
the path of remediation, ordered preparation of a remediation plan, and
177. Consent Decree at 24-26, Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Jan. 25,
2018), ECF No. 94.
178. Id.
179. Id. at 25.
180. Joint Report on Status of Compliance with Consent Decree, Hunter v. Beshear,
No. 16-cv-00798 (M.D. Ala. Jan. 25, 2019), ECF No. 116.
181. Judge Thompson was appointed by President Jimmy Carter in 1980 and served as
the Chief Judge of the United States District Court for the Middle District of Alabama from
1991-1998. He is the second African-American to serve as a federal judge in Alabama.
182. See Joint Plan to Remediate Def.’s Noncompliance with Consent Decree at 1,
Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Oct. 31, 2019), ECF No. 137.
183. Id. at 2.
184. Id.
185. Id.; see also Order at 1-2, Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Nov. 4,
2019), ECF No. 138 (order granting extension of “court supervision and monitoring by one
year . . . to January 28, 2022”).
186. Order, Hunter v. Beshear, No. 16-cv-00798 (M.D. Ala. Mar. 22, 2021), ECF No.
182 (court ordering “Defendant [to] prepare a proposed remedial plan to address . . . continued
noncompliance with the consent decree”); Order Hunter v. Beshear, No. 16-cv-00798 (M.D.
Ala. Mar. 11, 2021), ECF No. 181 (granting parties’ joint extension of the consent decree by
another year to January 28, 2023).

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discouraged the filling of enforcement or contempt motions to avert protracted
litigation. This led to the appointment of a compliance monitor, a negotiated
remediation plan with more explicit goals and benchmarks, and multiple
extensions of the timeframe for court enforcement beyond the initial three-year
timeframe. No termination motions have been filed and the defendants have
begun making “modest improvements in ensuring compliance,” but still have
work to do. 187 While the parties ultimately agreed on a remediation plan, the
court teed up remediation as a path forward, making clear that while contempt or
enforcement motions were certainly an option, remediation geared toward
compliance was preferred.
4. Case study 4—Extension of decree beyond period initially
contemplated
The tone a court sets from the outset can also lead to parties agreeing to an
extension of court oversight, rather than the filing of termination motions even
where permitted under the termination provisions of a consent decree. Laube v.
Haley demonstrates how this plays out in practice. 188
In that case, the Southern Center for Human Rights and private counsel filed
a class action and request for preliminary injunction on behalf of all female
prisoners in Alabama, challenging conditions of confinement and alleging
violation of the inmates’ Eighth and Fourteenth Amendment rights. 189 The court
made clear that it expected remediation of the unconstitutional conditions from
the start. Judge Myron Thompson granted plaintiffs’ motion for preliminary
injunction as to one specific facility (Julia Tutwiler Prison for Women) in
December 2002 and wrote a lengthy opinion detailing the illegal conditions:
In sum, the court holds that the plaintiffs are entitled to preliminary-injunctive
relief on their claim that they are subject to a substantial risk of serious harm
caused by Tutwiler’s greatly overcrowded and significantly understaffed open
dorms. Indeed, the court is not only convinced that these unsafe conditions have
resulted in harm, and the threat of harm, to individual inmates in the immediate
past, it is also convinced that they are so severe and widespread today that they
are essentially a time bomb ready to explode facility-wide at any unexpected
187. Joint Req. to Modify Consent Decree at 1, Hunter v. Beshear, No. 16-cv-00798
(M.D. Ala. Feb. 14, 2020), ECF No. 149 (parties filed joint motion to make three small
modifications to the original consent decree and in doing so provided brief overview on status
of compliance). See also Joint Report on Status of Compliance with Consent Decree, Hunter v.
Beshear, No. 16-cv-00798 (M.D. Ala. Aug. 19, 2020), ECF No. 157 (providing further status
updates, after which the court determined in September 2020 that it would take no further
action at that time); Joint Report on Status of Compliance with Consent Decree, Hunter v.
Beshear, No. 16-cv-00798 (M.D. Ala. May 25, 2021), ECF No. 188 (defendant outlining
ongoing remediation efforts and proposing additional remediation steps, and plaintiffs
detailing ongoing deficiencies and requests for additional documentation and information to
help address the deficiencies).
188. See generally No. 02-cv-00957 (M.D. Ala. Aug. 19, 2002).
189. Compl., Laube v. Haley, No. 02-cv-00957 (M.D. Ala. Aug. 19, 2002), ECF No. 1.

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moment in the near future. 190

To that end, the court “preliminarily declared that the unconstitutionally
unsafe conditions, resulting from overcrowded and understaffed open dorms . . .
violate the Eight Amendment to the United States Constitution,” and ordered the
defendants to submit “a plan that redresses immediately and fully the
unconstitutional conditions . . . .” 191
The court rejected defendants’ first remediation plan in another written
opinion holding that a lack of state funding was no excuse: “[B]udgetary
concerns are not a defense to constitutional violations. Because the lack of funds
is the main factor determining relief outlined in the defendants’ plan, the plan
must be modified.” 192 The defendants submitted a second proposed plan to cure
the identified deficiencies, but before the court could approve the plan, it
recognized that it no longer had authority to enforce the preliminary injunction
and rule on the proposed remediation plan because PLRA § 3626(a)(2) generally
limits preliminary injunctions to ninety days. 193 Although the court invited
plaintiffs to renew their motion for preliminary injunction, they did not need to
do so. 194 Instead, the defendants assured the court that they planned to move
forward with their initial and supplemental remediation plans regardless of the
status of the preliminary injunction, and the parties thus headed toward
settlement. 195
In June 2004, the parties asked the court to approve two settlements—one
related to conditions and another addressing medical issues. 196 The final
agreements met the need-narrowness-intrusiveness requirement by both quoting
and referring to the relevant statutory section. 197 The agreements also provided
for termination after four years, with the option for defendants to file termination
motions as permitted under the PLRA. 198 And the court retained jurisdiction to
enforce the agreements. 199
190. Laube v. Haley, 234 F. Supp. 2d 1227, 1252 (M.D. Ala. 2002).
191. Id. at 1253 (emphasis omitted).
192. Laube v. Haley, 242 F. Supp. 2d 1150, 1152 (M.D. Ala. 2003) (citation omitted).
193. Laube v. Campbell, 255 F. Supp. 2d 1301, 1303-04 (M.D. Ala. 2003).
194. Id. at 1304.
195. Id. at 1303.
196. Joint Mot. to Adopt Conditions Settlement Agreement and Medical Settlement
Agreement, Laube v. Haley, No. 02-cv-00957 (M.D. Ala. June 25, 2004), ECF No. 313.
197. Conditions Settlement Agreement at 5-6, Laube v. Haley, No. 02-cv-00957 (M.D.
Ala. Aug. 23, 2004), ECF No. 341-1 [hereinafter Conditions Settlement]; Medical Settlement
Agreement at 14, Laube v. Haley, No. 02-cv-00957 (M.D. Ala. Aug. 23, 2004), ECF No. 3412 [hereinafter Medical Settlement].
198. Conditions Settlement, supra note 197, at 6; Medical Settlement, supra note 197,
at 14 (“This . . . Settlement Agreement shall be in effect for four years from the date the
Agreement is approved by the Court. Nothing in this Agreement is intended to preclude
Defendants from moving to terminate the Order in the manner permitted by the Prison
Litigation Reform Act.”).
199. Conditions Settlement, supra note 197, at 5; Medical Settlement, supra note 197,
at 14.

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Despite leaving open the option for defendants to file termination motions
pursuant to the PLRA, no such motions were filed. Instead, when plaintiffs filed
a motion to show cause why defendants should not be held in contempt for failing
to meet certain settlement conditions, the parties agreed to an additional
settlement agreement. 200 Further, no termination motions were filed even upon
the initially contemplated four-year term of the agreement. Instead, the
agreement did not terminate until approximately five and a half years after entry,
upon a joint motion of the parties indicating that all settlement conditions had
been met and no constitutional violations remained. 201
Judge Thompson set a firm tone upfront about his expectations for
remediation. And although the PLRA restricted his ability to continue enforcing
the preliminary injunction after ninety days, the parties had hashed out
remediation terms with the court’s guidance before the preliminary injunction
expired. This paved the way for settlement of the case with court enforcement.
Even without a substantial compliance provision and the looming possibility for
the defendants to file termination motions as early as two years into the decree,
no such motions were filed and the initial four-year term was extended until full
compliance with all settlement provisions was achieved.
5. Case study 5—Court-brokered settlement
Courts can also help broker settlements if disputes arise once a decree is in
place, rather than taking up enforcement and/or termination motions. In
McClendon v. City of Albuquerque, for example, when plaintiffs filed a motion
to show cause alleging violations of the operative consent decree, the court
required a settlement conference and encouraged the parties to resolve the
dispute. 202 Plaintiffs withdrew their motion two months later after the parties
reached an agreement. 203 Several years later, amid plaintiffs’ motion for

200. Mot. for Order to Show Cause Why Defendants Should Not be Held in Contempt,
Laube v. Haley, No. 02-cv-00957 (M.D. Ala. May 10, 2006), ECF Nos. 371-72; Joint Mot. to
Modify Medical Settlement Agreement, Laube v. Haley, No. 02-cv-00957 (M.D. Ala. Aug. 3,
2006), ECF No. 390; Order, Laube v. Haley, No. 02-cv-00957 (M.D. Ala. Aug. 10, 2006),
ECF No. 393 (granting joint motion to modify Medical Settlement).
201. The initial consent decree was set to terminate on July 1, 2008, but the parties did
not terminate the agreement until January 25, 2010. See Joint Mot. for Entry of Final J.,
Laube v. Haley, No. 02-cv-00957 (M.D. Ala. Jan. 20, 2010), ECF No. 435; Final J., Laube v.
Haley, No. 02-cv-00957 (M.D. Ala. Jan. 25, 2010), ECF No. 436.
202. Joint Mot. for Order to Show Cause and for Further Remedial Relief,
McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. Aug. 27, 2001), ECF No. 320;
Order, McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. Nov. 21, 2001), ECF
No. 339.
203. Stipulated Agreement, McClendon v. City of Albuquerque, No. 95-cv-00024
(D.N.M. Jan. 31, 2002), ECF No. 361.

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injunctive relief and defendants’ motion to terminate, 204 Judge James Parker 205
issued an order implementing a compromise whereby both parties agreed to
withdraw their motions and the defendants agreed not to file another motion
based on the PLRA within eighteen months after entry of the court’s order. 206
Instead, the parties were instructed to confer with an expert and developed a plan
for bringing defendants into compliance. 207 Thus, even in a case with prolonged
court supervision, it is possible for a court to assist parties in moving toward
compliance. Indeed, although termination motions were filed in this case, the
court did not meaningfully entertain them and instead encouraged the parties to
resolve any disputes and continue working toward compliance.
While the case remains ongoing, it is clear that defendants are slowly
achieving compliance. The parties’ most recent settlement agreement
contemplates a three-step process for compliance and subsequent disengagement
for each of eight “domains” in the agreement. 208 If compliance is achieved, all
extant orders related to that domain are vacated, but if defendants have not met
their obligations, they must repeat prior steps. 209 Beginning in November 2019,
the parties agreed that defendants were in substantial compliance with several
domains, and the court granted motions for a finding of initial compliance on
three of the eight domains. 210
204. See Pls. and Pl.-Intervenors’ Joint Mot. for a Temporary Restraining Order and for
Injunctive Relief, McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. Apr. 23,
2014), ECF No. 1133; Cnty Def.’s Mot. to Terminate Certain Prior Orders Granting
Prospective Relief Based on the Prison Litigation Reform Act, McClendon v. City of
Albuquerque, No. 95-cv-00024 (D.N.M. Apr. 25, 2014), ECF No. 1135.
205. Judge Parker was appointed by Ronald Reagan in 1987 and served as Chief Judge
for the United States District Court for the District of New Mexico from 2000-2003.
206. Order Resolving Two Mots. and Order to Show Cause at 3, McClendon v. City of
Albuquerque, No. 95-cv-00024 (D.N.M. May 12, 2014), ECF No. 1147.
207. Id. at 3-5.
208. Mem. Opinion and Order Granting Approval of Settlement Agreement at 12-16,
McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. June 27, 2016), ECF
No. 1225. See also Order at 2-4 n.2, McClendon v. City of Albuquerque, No. 95-cv-00024
(D.N.M. Feb. 12, 2020), ECF No. 1395 (The domains are: Mental Health Services, Medical
Services, Group A of Jail Operations, Group B of Jail Operations, Population Management,
Housing and Segregation, Sexual Misconduct, and Use of Force by Security Staff and Internal
Investigations).
209. See Order at 4, McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M.
Feb. 12, 2020), ECF No. 1395.
210. Order, McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. Dec. 11,
2019), ECF No. 1387; Order, McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M.
Feb. 12, 2020), ECF No. 1395; Stipulated Order Granting Defendant Bernalillo Cnty. Bd. of
Commissioners’ Unopposed Mot. for Finding of Initial Compliance and to Set SelfMonitoring Period Regarding Domain #3, McClendon v. City of Albuquerque, No. 95-cv00024 (D.N.M. Feb. 19, 2020), ECF No. 1397. At the time of this writing, the parties had just
completed briefing on Plaintiffs’ motions for findings of sustained compliance as to domains
#5 and #6, and the court was set to make a determination about whether sustained compliance
had been achieved as it pertains to these two domains. See Notices of Briefing Complete,
McClendon v. City of Albuquerque, No. 95-cv-00024 (D.N.M. May 14, 2021), ECF Nos.

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V. WHY PRACTITIONER AND COURT INVOLVEMENT ISN’T ENOUGH
Although lawyers and courts have taken extraordinary measures to curb
constitutional violations in prisons in the face of the PLRA, the Act continues to
hamper progress in prison reform litigation in unnecessary and undesirable ways.
First, to avoid the PLRA’s two-year termination timeframe, plaintiffs must
negotiate for termination provisions, potentially diminishing their ability to
negotiate other important aspects of prison reform. This may result in less robust
settlements than plaintiffs would otherwise be able to achieve.
Second, even where a negotiated termination provision dispenses with the
PLRA’s two-year termination mandate, it often leaves open the possibility for
termination motions at some point down the line. In other words, the termination
provisions plaintiffs negotiate for are not necessarily ironclad termination
waivers, so the parties often end up back under the PLRA’s termination standard.
For example, in cases where the two-year termination timeframe is extended by
some number of additional years, the decree will generally revert to the PLRA’s
termination standard upon expiration of the extended timeframe. 211 Even in cases
that initially opt out of any timeframe for termination altogether, the parties often
renegotiate provisions that allow for termination motions after a certain amount
of time. 212
Third, even under seemingly robust “substantial compliance” provisions 213
the threat of termination motions is still ever looming. 214 And the PLRA ties
judges’ hands when it comes to granting such motions. Judges must grant a
motion for termination unless they find that “prospective relief remains
necessary to correct a current and ongoing violation of the Federal right,” and
such relief meets the need-narrowness-intrusiveness requirement. 215 If they
don’t, they risk reversal. In other words, even when a judge attempts to help
parties carry out the terms of a consent decree, that agreement may be whittled
down over time or otherwise not fully executed if defendants file termination
motions.
Clark v. California—a case involving individuals with developmental
1416, 1417 (referencing briefing at ECF Nos. 1406-07 (motions), 1410-11 (responses), and
1414-15 (replies)).
211. See Part III.C.2. above for examples of extended termination timeframes.
212. See Part III.C.4. above for examples of opt out provisions that were later
renegotiated to allow for termination.
213. See Part III.C.1. above for examples of substantial compliance termination
provisions.
214. Although it is an open question whether an agreement that alters the PLRA’s twoyear termination timeframe would be binding on the parties if challenged, some academics
have argued that provisions altering the PLRA’s timeframe are likely binding. See, e.g.,
Prisoners’ Rights Lawyers’ Strategies, supra note 65, at 544 (“I think the best answer is yes,
such agreements would be binding; there’s insufficient reason to take the unusual approach of
interpreting the PLRA’s provisions as unwaivable.”).
215. 18 U.S.C. § 3626(b)(3) (2018).

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disabilities in the California Department of Corrections—provides one such
example. 216 In that case the parties agreed in a 2001 consent decree that
defendants could file for termination upon three years of substantial compliance;
if plaintiffs opposed termination, they would have the burden of proving
defendants were not in substantial compliance. 217 Yet in 2009, defendants filed
a motion to terminate, not asserting they had achieved three years of substantial
compliance, but instead arguing that termination was appropriate because there
were no current and ongoing violations of plaintiffs’ federal rights. 218 Plaintiffs
noted in opposition that defendants were moving to “terminate the Settlement
Agreement, not based on full implementation of the promised reforms, but on
the [PLRA’s] termination provisions,” but focused their argument on what they
asserted were ongoing violations of plaintiffs’ constitutional rights. 219 The court
heard six days of testimony before denying defendants’ motion to terminate in a
107-page written opinion, and determining that the entire consent decree should
remain in effect given numerous ongoing constitutional violations. 220 Thus,
although plaintiffs negotiated a three-year substantial compliance termination
provision, defendants filed a motion to terminate irrespective of that provision. 221
This stayed prospective relief until the court entered its final ruling, required
great time and expense for the parties to prepare for a six-day evidentiary
hearing, and required the court to make extensive findings about ongoing
violations of plaintiffs’ constitutional rights. And while the court denied the
motion to terminate given the considerable ongoing violations, different facts
could require a judge to grant a termination motion without true compliance
216. No. 96-cv-01486 (N.D. Cal. Apr. 22, 1996).
217. Settlement Agreement and Order ¶ 14, Clark v. California, No. 96-cv-01486 (N.D.
Cal. Dec. 3, 2001), ECF No. 194 (“Defendants may move to vacate this Settlement Agreement
and dismiss the case on the ground that they have substantially complied with the plan set
forth in Appendix A as modified for a period of three years. Plaintiffs may oppose the motion,
and shall have the burden of proving that defendants are not in substantial compliance.”).
218. Defs.’ Notice of Mot. and Mot. to Terminate Settlement Agreement at 1, Clark v.
California, No. 96-cv-01486 (N.D. Cal. July 24, 2009), ECF No. 205.
219. Pls.’ Opp’n to Def.s’ Mot. to Terminate Settlement Agreement at 4, Clark v.
California, No. 96-cv-01486 (N.D. Cal. Aug. 7, 2009), ECF No. 244.
220. Clark v. California, 739 F. Supp. 2d 1168, 1233-36 (N.D. Cal. 2010). The court
also granted a motion by plaintiffs to implement further remedial measures, noting that
“denying defendants’ termination motion without additional action would be insufficient to
remedy defendants’ violations of federal law.” Id. at 1234.
221. Despite the parties providing explicit language in the consent decree that it met the
PLRA’s need-narrowness-intrusiveness standard, and the court approving decree, defendants
also argued that the consent decree should be terminated because the court did not make
explicit findings at the time of entry that the decree met the need-narrowness-intrusiveness
standard. Defs.’ Notice of Mot. and Mot. to Terminate Settlement Agreement at 10-11,
Clark v. California, No. 96-cv-01486 (N.D. Cal. July 24, 2009), ECF No. 205. Although the
court found that “the findings required by the statue are implicit in the court’s judgment,”
Clark, 739 F. Supp. 2d at 1228-29 (citing Gilmore v. California, 220 F.3d 987, 1007 n.25 (9th
Cir. 2000)), this argument challenges the very fabric that has allowed PLRA consent decrees
with court enforcement to proceed. See Part III.B above.

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under a consent decree.
Fourth, although the case studies demonstrate that courts can be helpful in
assisting parties to move toward compliance, such compliance and whether
termination motions are filed should not be left to the whim of which judge
happens to be assigned to a case. Instead, like non-PLRA decrees, compliance
should be considered achieved when compliance is actually achieved. In
McClendon v. Albuquerque (Case Study 5, discussed above), the court did not
take up termination motions that were filed, and instead helped broker a
settlement that has since assisted the parties with compliance. But not all judges
will take such an approach, nor would that approach work in all cases.
For example, in Harper v. Bennett—a case involving conditions at Fulton
County Jail in Atlanta, Georgia—the parties agreed to a termination provision
that provided: “Any party may move to terminate this Consent Order two years
after the date the court enters it.” 222 This led to some of the defendants filing a
motion to terminate in 2015, 223 in which they conceded that, according to the
court monitor, the jail was not in full compliance with the consent order with
respect to staffing. 224 Despite this concession, the defendants argued that “full
compliance with the Consent Order is not a prerequisite for release from said
Order pursuant to 18 U.S.C. § 3626(b)(1)(A),” and thus because “there are no
current and ongoing constitutional violations at the Fulton County Jail, this Court
should now terminate the prospective relief.” 225 Plaintiffs pointed out numerous
provisions in the consent decree related to staffing that had not been met, noted
that the jail’s accreditation from the National Commission on Correctional
Health Care was recently withdrawn, and argued that the decree remained
necessary to correct ongoing violations of their federal rights because the
dangerously low staffing was compromising delivery of medical care and
permitting violence to occur without intervention or detection. 226 The court
terminated the consent decree, noting that “in order to maintain the Consent
Order in this case, this Court must find current and ongoing violations of the
Federal rights of the Plaintiffs. It is not sufficient that specific terms of the
Consent Order are not being met.” 227 The court recognized that “a delay in
medical care is reason for concern,” and that “the assault claim is disturbing,”
but noted that “jails are dangerous places,” and concluded that plaintiffs could

222. Consent Order ¶ 114, Harper v. Bennett, No. 04-cv-01416 (N.D. Ga. Dec. 20,
2005), ECF No. 87.
223. Defendants filed a similar termination motion in 2013, which was denied. See
Order, Harper v. Bennett, No. 04-cv-01416 (N.D. Ga. Jan. 29, 2013), ECF No. 288.
224. Defs.’ Brief in Supp. of Mot. Terminate Prospective Relief at 4, Harper v. Bennett,
No. 04-cv-01416 (N.D. Ga. Feb. 6, 2015), ECF No. 349-1.
225. Id.
226. Pls.’ Resp. in Opp’n Mot. to Terminate Prospective Relief, Harper v. Bennett,
No. 04-cv-01416 (N.D. Ga. Mar. 18, 2015), ECF No. 356.
227. Order at 3, Harper v. Bennett, No. 04-cv-01416 (N.D. Ga. May 12, 2015), ECF
No. 368.

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not establish the requisite showing for ongoing court monitoring under the
PLRA. 228 Thus, despite the consent decree not being fully carried out as
originally negotiated, the court terminated the decree pursuant to the PLRA’s
strict termination provision.
Fifth, where defendants opt to file incremental termination motions as they
allege they have come into substantial compliance with specific aspects of a
decree, with each subsequent motion, plaintiffs are forced to consider whether
fighting for compliance is worth the time, cost, and risk of a more sweeping
termination motion. Although such provisions were agreed to by the parties—
and thus presumably contemplated as helpful measures for achieving prison
reform—plaintiffs may be forced to relent on strict enforcement given the risks
associated with contesting incremental termination. Further, stacking up several
incremental termination motions over time could lead to a number of substantive
provisions being abandoned, and thus a set of reforms that is far less than what
the parties agreed to.
For example, in Parsons v. Ryan—a case involving issues related to
healthcare and maximum custody prisoners within the Arizona Department of
Corrections—the parties agreed in a 2015 consent decree that, “[t]o allow time
for the remedial measures set forth in this [decree] to be fully implemented, the
parties shall not move to terminate this [decree] for a period of four years from
the date of its approval by the Court.” 229 The consent decree also provided that
termination of the duty to report on particular performance measures would
terminate if that measure was in compliance for eighteen months out of a twentyfour month period, and had not been out of compliance for three or more
consecutive months within the past eighteen-month period. 230 Just two and a half
years after the court approved the decree, defendants filed a motion to terminate
their duty to report on most of the performance measures. 231 The court denied
the motion (except as to performance measures plaintiffs agreed should be
terminated or those that were inapplicable at certain facilities). 232 And in a
written opinion, the court noted that its interpretation of the decree was
“consistent with the Court’s statutory obligation under the [PLRA],” because its
written findings demonstrated that prospective relief remained necessary to
correct a current and ongoing violation of a federal right. 233 Thus, despite
agreeing not to move to terminate the decree until four years after its entry,
defendants moved to terminate a portion of the decree a mere two and a half
228. Id. at 5-7.
229. Stipulation ¶ 37, Parsons v. Ryan, No. 12-cv-00601 (D. Ariz. Oct. 14, 2014), ECF
No. 1185.
230. Id. ¶ 10(b).
231. Def.s’ Mot. to Terminate Monitoring, Parsons v. Ryan, No. 12-cv-00601 (D. Ariz.
Aug. 25, 2017), ECF No. 2251.
232. Parsons v. Ryan, No. 12-cv-00601, 2018 WL 3238944 (D. Ariz. June 22,
2018), aff’d, 949 F.3d 443 (9th Cir. 2020).
233. Id. at *1.

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years after its inception. 234 Although the court denied the motion given that it
determined there was an ongoing violation of a federal right, it recognized that
its authority to deny the motion was limited by the PLRA.
Finally, the PLRA has led to narrower decrees. 235 Although this may be one
of the reasons relatively few termination motions have been filed in newer
cases, 236 such decrees are inherently antithetical to systemic prison reform. Thus,
while the concept of fewer termination motions on its face may present as a
positive, when it comes to narrower decrees, the PLRA is actually hindering
systemic prison reform.
CONCLUSION
Despite the constrained mode of prison reform litigation prescribed by the
PLRA (and fears about injunctive practice being eviscerated), lawyers and courts
have helped ensure the survival of injunctive practice in a post-PLRA world.
Lawyers have devised creative ways to allow for court enforcement while
settling on their terms. And they have modified the PLRA’s two-year termination
provision to provide more favorable terms for compliance. Practitioners have
thus mitigated at least some of the PLRA’s hurdles through the careful crafting
of consent decrees.
Once a court-enforceable decree is in place, however, compliance is far from
ensured. The level of court involvement and the tone a court sets toward
compliance are powerful factors that can contribute to whether compliance as
contemplated under a consent decree is ultimately achieved. These factors are,
at the very least, something defendants must grapple with when deciding whether
to file termination motions. As the case studies demonstrate, courts have taken a
variety of approaches to encourage compliance—forceful written opinions,
encouraging remediation prior to enforcement motions, holding a trial on
enforcement motions, extending court oversight, or brokering settlement even
where termination motions are filed. In other words, courts often help guide
parties toward a path of compliance without a flurry of termination motions and
protracted side litigation that may ultimately serve no useful purpose for either
side.
Yet despite the efforts by lawyers and judges to fight for prison reform, the
234. Defendants have since filed additional termination motions. See, e.g., Defs.’ Mot.
to Terminate Monitoring and Reporting of Maximum Custody Performance Measures 1
through 8, Parsons v. Ryan, No. 12-cv-00601 (D. Ariz. Jan. 11, 2019), ECF No. 3108; Defs.’
Mot. to Terminate Certain Healthcare Performance Measures, Parsons v. Ryan, No. 12-cv00601 (D. Ariz. Dec. 23, 2020), ECF No. 3840.
235. Trends in Prisoner Litigation, supra note 71, at 169-70 (noting that system-wide
court orders directed at conditions of confinement are now rare but were common before the
PLRA).
236. See note 129 above for additional thoughts on why fewer termination motions have
been filed in newer cases.

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PLRA continues to hamper reform, potentially altering settlement negotiations
or tying judges’ hands and leading to less than full compliance with consent
decrees that parties agreed to. After twenty-five years under the PLRA, it is clear
that the Act continues to impede necessary reform, impacting people least able
to assert their rights. Given our nation’s renewed call to action around criminal
justice reform, now is the time to rethink the PLRA and its constraints on
injunctive practice.

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