Volume 56

150% Wrong: The Prison Litigation Reform Act and Attorney’s Fees

by Eleanor Umphres

Lawyers are professionals. Like doctors or pilots, lawyers perform a job that lay-people would otherwise struggle with tremendously or outright botch without the years of experience and training necessary to carry out such a vocation. Courts rely on lawyers to shepherd clients through the system, and it is typically the lawyers who file suit, write briefs, interview witnesses, argue motions, and take cases up on appeal. When pro se litigants attempt to shoulder the role of lawyer themselves, the system works less efficiently. Additionally, the pro se litigant is arguably worse off without the benefits that competent counsel bring to the table. Unfortunately, however, prisoners file the vast majority of their lawsuits pro se, because very few lawyers are willing to take on prisoner cases given the current disincentives.

By engaging in a strained construction of the Prison Litigation Reform Act (“PLRA”)—unsupported by its actual language—courts have found the Act to cap attorney’s fees at 150% of the monetary award. The result of this misreading of § 1997e(d)(2) is a perverse disincentive for attorneys to appear in even potentially meritorious cases. The misreading is also incongruous with the Supreme Court’s regular admonishment against embellishing statutory language and leads to absurd results. For example, a lawyer who brings a successful civil rights suit on behalf of a prisoner client might receive an attorney’s fees award of merely $1.50—despite the days, months, and even years he or she worked on the meritorious litigation. Such severe consequences deter lawyers from taking on prisoner cases, but the PLRA’s attorney’s fees restrictions do nothing to stop prisoners themselves from proceeding on their own. The result is that prisoners with vital civil rights claims cannot find lawyers to help them bring suit, and courts remain clogged with prisoners soldiering on pro se. To facilitate the just resolution of meritorious prisoner litigation, prisoners’ civil rights attorneys should be paid closer to market rate or at least a fair wage—by the losing side, and a correct reading of § 1997e(d)(2) makes this possible.

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