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Wednesday, May 07, 2014

Judge Tatel Uses a Concurrence to his own Majority Opinion as a Mechanism for Calling for Review of the Constitutionality of the Prison Litigation Reform Act

Many readers of this blog have had the experience as a law clerk reading complaints filed by prisoners or as a lawyer trying to help prisoners bring their concerns about mistreat or wrongful conviction to the courts.  Having worked directly on issues of prisoner access to health care, I've seen this issue from both sides. I also bring the PLRA act to students' attention in two classes I teach- Correctional Health and Constitutional Issues in Health Law.

Sometimes the petitions are heart-breaking, sometimes silly and almost always exhausting to parse.

Much of that activity was halted by a very powerful federal law, the Prison Litigation Reform Act of 1996 that set up a 3 strikes system that deprived a prisoner's right to petition the court without paying a filing fee after a judicial determination that he or she had filed 3 frivolous law suits.

For anyone interested in the issue (and/or looking for an article topic) I commend to you a very interesting  concurring  opinion today in the case of Keith Thomas v. Eric Holder, Jr. (DC Circuit) in which Circuit Judge Tatel takes a direct and critical look at the constitutionality of this law.  He writes that "I have grave doubts that the PLRA’s three-strikes provision may be constitutionally applied to indigent prisoners who seek access to the courts in order to bring claims involving fundamental constitutional rights. In the appropriate case, this court should address this unsettled issue.--and I commend it to everyone interested in access to the courts and civil rights."

But I also highlight it for the subsection of this readership with an interest in the art of judicial opinion writing--this is an opinion where Judge Tatel wrote the majority finding for the government AND  a concurrence expressing doubts about the law's constitutionality.  His reason for doing so makes sense--the constitutionality of  the PLRA was not directly relevant to dismissing an appeal in a case seeking the reclassification of marijuana so that it could be made available to prisoners for medical use.  

As he explained, "[f]or this court to reach out and decide this difficult and important question simply to reinstate a pointless appeal would violate the norm of constitutional avoidance to which we generally adhere."

But  his concern is justified.  Efficiency is an insufficient justification for blocking access to the court for those most vulnerable to abuse of state power.

Posted by Jennifer Bard on May 7, 2014 at 12:46 AM in Constitutional thoughts | Permalink

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