Volume 30

Punishment, Poverty, and the Limits of Judicial Policymaking

by Elaina Marx

In 1996, prisoners’ rights formally fell out of public favor. The Prison Litigation Reform Act (“PLRA”) put a period on the widespread prisoners’ rights movement of the 1960s and 70s: it drastically diminished the ability of prisoners to vindicate their rights in courts, the incentives for lawyers to represent prisoners, and the ability of courts to grant structural relief for prisoners’ rights violations. The paradigmatic analyses of this statute interrogate the quantity and quality of the pre-PLRA inmate docket and the judiciary’s pre-PLRA effectiveness at implementing structural prison reform. However, these accounts of the statutewhile descriptively accurate and analytically incisiveare historically incomplete. This Article tells a new story about the PLRA. It links two bodies of historywelfare reform in the late twentieth century and concurrent judicial policymaking in prison systemsand in doing so, repositions the PLRA as a congressional capstone on both projects. By juxtaposing a period of striking judicial reform in prisons with growing sociopolitical skepticism over social services to the poor, this Article illuminates an overlooked continuity between welfare and prison reforms. Recasting the PLRA as a restriction on welfare rights enriches our understanding of the statute and its place in history. It also implicates other conversations: about the relationship between procedure and substantive rights; the historical paradigm shift toward welfare services as moral gatekeeping; the judiciary as a protector of rights; and more substantively, the quality of prison conditions post-PLRA.

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