Systematic Protection and Advocacy for Prisoners

By Aaron Littman

The roughly two million people incarcerated in the United States are mostly left to advocate for themselves, aided sometimes by a sparse constellation of non-profit organizations and small firms, and accompanied by a smattering of weak oversight entities and a couple of units within the Department of Justice. But there is another entity, virtually unmentioned in the legal literature, that can—and in some jurisdictions, does—play a powerful role in advancing the rights of the large subset of prisoners with disabilities: the federally mandated protection and advocacy system, or P&A. Drawing on findings from twenty-five interviews with affiliated lawyers and other advocates, this Article presents the first scholarly consideration of the P&A’s role in ameliorating prison and jail conditions.

Congress afforded these little-known disability-rights organizations, which exist in each state, startling access authority and privileged ability to assert associational standing. The only entities in the country that provide both independent oversight and enforcement through litigation in prisons and jails, they function simultaneously as ‘lawyers with access’ and ‘oversight with teeth.’ Some P&As work to great effect on behalf of incarcerated people with disabilities, using their distinctive powers to circumvent many of the most troubling obstacles to traditional prisoners’ rights advocacy: unfavorable constitutional standards, obstructed fact discovery, the challenges of mootness and class certification, and the procedural hurdles created by the Prison Litigation Reform Act.