By Aaron Littman

Prisoner litigation proceeds along two distinct tracks. On the first and predominant track, prisoners are pro se; their litigation is processed according to exceptional and largely extrajudicial procedures; and they almost always lose. On the second and much rarer track, prisoners obtain counsel—often through appointment; their cases receive serious consideration; and success is much more likely. Federal judges, magistrates, and staff attorneys play important roles in shaping prisoner civil rights litigation by assigning cases to these tracks.

Perhaps so few prisoner civil rights cases are counseled and robustly adjudicated because most claims lack merit, or instead, perhaps so few prisoner civil rights claims succeed because so few prisoners are afforded counsel and receive the benefits of a fulsome adjudication.

This essay analyzes over a decade of data on federal prisoner civil rights cases and suggests that the latter explanation is, at least in large part, correct. It compares, for the first time, success rates in prisoner civil rights cases across districts and circuits and across years with widely varying representation rates; it also employs a novel method to identify prisoner civil rights appeals in which counsel was appointed. Together, these analyses suggest that lawyering—and the serious engagement by courts that comes along with it—really matters. When more prisoner litigants are represented and fully heard, it seems, more of them win.

43 Review of Litigation 43 (2023)
UCLA School of Law, Public Law Research Paper No. 24-6