Pace Law Review
Volume 30
Issue 5 Fall 2010
Opening Up a Closed World: A Sourcebook on
Prison Oversight

Article 19

11-18-2010

Getting to Yes in a PLRA World
Elizabeth Alexander

Recommended Citation
Elizabeth Alexander, Getting to Yes in a PLRA World, 30 Pace L. Rev. 1672 (2010)
Available at: http://digitalcommons.pace.edu/plr/vol30/iss5/19
This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law
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Getting to Yes in a PLRA World
Elizabeth Alexander
I.

Some Opening Musings

An ongoing discussion among prisoners’ rights advocates,
since the passage of the Prison Litigation Reform Act of 1995
(PLRA) restricting the powers of federal courts to provide
remedies in conditions of confinement litigation,1 has been
whether such litigation remains a viable means of assuring
decent and humane conditions of confinement within the
nation’s prisons, jails, and juvenile facilities. While I cannot
quarrel with the basic premise that prison litigation is by itself
not enough to assure decent conditions, we should not be too
hasty in abandoning prison litigation as one of the major
vehicles for prison reform.
I once had a conversation with opposing counsel in one of
my cases that illustrates why prison litigation has survived the
passage of the PLRA, as well as an increasingly hostile federal
bench, and, in particular, why consent decrees will continue to
play a major role in such litigation. As we argued over
discovery in connection with a forthcoming court hearing, he
asked why we had to have these hearings all the time. Why
couldn’t the state’s employees and our experts just sit around a
table and concentrate on fixing what is wrong?2

Elizabeth Alexander is in private practice in Washington, D.C.,
specializing in conditions of confinement litigation.
1. Prison Litigation Reform Act of 1995 (PILRA), Pub. L. No. 104-134,
110 Stat. 1321 (1996).
2. These post-PLRA hearings have been much more intensive than
previous hearings, as well as more frequent. PLRA is not solely responsible
for this escalation in litigation warfare in conditions-of-confinement cases
since 1996; an increasingly conservative federal bench has also imposed
heavier evidentiary requirements on prisoner litigants. See, e.g., Lewis v.
Casey, 518 U.S. 343, 349 (1996) (imposing requirement of proof of actual
injury in access to courts cases); Wilson v. Seiter, 501 U.S. 294, 303-04 (1991)
(imposing requirement of proof of “deliberate indifference” by prison officials
to show violation of Eighth Amendment in prison conditions of confinement
litigation); Rhodes v. Chapman, 452 U.S. 337, 348 (1981) (imposing
requirement of proof of “unnecessary or wanton pain” or conditions that are

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With some amusement I reminded him that we were
having the hearing because defendants had filed a motion to
terminate injunctive relief pursuant to PLRA, 3 which
defendants had lost, and this new hearing would address
whether defendants’ latest self-correction plan, along with a
new injunction, had cured the constitutional violations. In fact,
prior to the passage of PLRA, the parties had spent a fair
amount of time attempting to negotiate changes in defendants’
behavior that would have satisfied the requirements of the
consent decree in the case, with court filings occurring only
when negotiations did not work.
Under the particular circumstances of the case in question,
even under PLRA it was a reasonable strategy for plaintiffs
and defendants to substitute negotiations for endless litigation.
The frustration that defendants’ counsel felt with their own
strategy of pursuing termination through PLRA is, I suspect,
not a completely isolated event. Obviously, after the enactment
of PLRA, prison-conditions litigators lost a huge number of old
cases that were in monitoring status, and we learned how
difficult it can be to litigate new cases in light of the exhaustion
requirement.4

“grossly disproportionate” to the need to punish criminal behavior to show
violation of Eighth Amendment in prison conditions of confinement cases).
Nonetheless, there is tremendous synergy between PLRA and these
evidentiary burdens: evidentiary hearings are both more frequent and
require far more preparation by plaintiffs’ counsel. As a result, litigating
these cases post-PLRA has been exhausting for both sides and I suspect that,
in the cases in which termination motions have failed, defendants have often
spent more money on attorneys’ fees than they would have expended if the
litigation had taken place before 1996, despite the restrictions on fees that
PLRA imposes. See 42 U.S.C. § 1997e(d) (2006) (limiting hourly fees to no
more than 150% of Criminal Justice Act rates (set by 18 U.S.C. § 3006A) for
representing indigent criminal defendants in federal prosecutions).
3. 18 U.S.C. § 3626(b) (2006) (allowing defendants in prison conditions of
confinement cases to file a motion to terminate an existing court injunctive
order if it lacks certain required findings or, if the order does contain the
required findings, allowing the filing of a motion for termination at various
intervals; in either case relief is not to terminate if relief remains necessary
to correct a current and ongoing violation of federal law).
4. See 42 U.S.C. § 1997e(a) (2006) (requiring exhaustion of available
administrative remedies before a prisoner can file litigation regarding his or
her conditions of confinement). For an excellent discussion of the effects of
PLRA on prisoner conditions of confinement litigation, see Margo Schlanger,
Civil Rights Injunctions Over Time: A Case Study of Jail and Prison Court
Orders, 81 N.Y.U. L. REV. (2006).

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At the same time, in cases in which prison litigators have
possessed the facts and the necessary resources, some
defendants learned the hard way that filing a termination
motion produced never-ending court battles rather than
victory. Indeed, in a small minority of cases, PLRA has
paradoxically added to the litigation burdens on prison-official
defendants, even as in countless ways the Act has given them
“get out of court free” cards. For example, some PLRA
termination hearings have resulted in courts entering new
injunctive orders in old cases.5 This should come as no
surprise. Logically, if plaintiffs show that a constitutional or
statutory violation of federal law persists despite an existing
court order addressing the issue, then the existing order,
having proven ineffective, needs to be modified or replaced to
eliminate the violation.
PLRA has also at times had a paradoxical effect on the
negotiation of consent decrees. Because prison-conditions
litigators can and do win cases, it follows that there are a
significant number of circumstances in which it is in the
interest of defendants to attempt to settle these cases. While
some of those in Congress who voted for PLRA may have
thought that it was outlawing consent decrees in prison
conditions cases, such agreements have survived precisely
because they serve defendants’ interests in some cases.
Further, in certain circumstances, by mandating restrictions on
the conditions under which a federal court is permitted to enter
a consent decree, PLRA has caused defendants to agree to more
strenuous terms than would have been the case in the absence
of the Act. This article explores some of the ways that parties
have continued to negotiate consent decrees post-PLRA, and
points out some of the consequences of PLRA in this context.

5. See, e.g., Gates v. Barbour, No. 4:71CV6-JAD (N.D. Miss. June 7,
2004) (ordering that HIV-positive prisoners be integrated in work release
programs; order directly resulted from proceedings following defendants’
filing of PLRA termination motion) (on file with author); Hadix v. Caruso, No.
4:92-CV-110, 2005 WL 2671289 (W.D. Mich. Oct. 19, 2005) (issuing
preliminary injunction requiring defendants to submit a plan to improve the
medical care for prisoners in segregation unit and in specialized medical
housing units at the prison; injunction resulted directly from proceedings
related to pending termination hearing).

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II. The Movement to Bar Consent Decrees in Institutional
Litigation
PLRA contains a hodgepodge of provisions, codified in
multiple sections of the United States Code, that have as their
intended effect restrictions on the ability of prisoners to litigate
their claims of constitutional or statutory violations in federal
court, or restrictions on the abilities of federal courts to redress
these grievances.6 While there were undoubtedly many sources
for the various restrictions, the central organizing theme of the
arguments in favor of the Act was that “frivolous” prisoner
litigation needed to be stopped.
On one level, PLRA
constituted symbolic legislation expressing disapproval of
prisoner conditions-of-confinement litigation7 at the same time
that it fulfilled a promise made by Republicans in the “Contract
with America.”8
The provisions appearing to restrict consent decrees
drastically, however, have a provenance that extends far
beyond prisoner-bashing. Conservatives have long argued that
federal courts should not enforce consent decrees made by
public officials that go beyond the command of federal law
because to do so is inconsistent with democratic principles,
inappropriately allows officials to escape the confines of state
law by binding their successors, and violates core tenets of
federalism.9
This is not an argument solely directed at consent decrees
regarding prison conditions of confinement, but various
versions of this argument have long been used to challenge

6. See, e.g., Schlanger, supra note 4 (discussing effects of various PLRA
provisions).
7. See Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws:
The Pathologies of the Antiterrorism and Effective Death Penalty Act and the
Prison Litigation Reform Act, 47 DUKE L.J. 1, 64 (1997) (arguing that PLRA
constitutes symbolic litigation).
8. See CONTRACT WITH AMERICA: THE BOLD PLAN BY REP. NEWT GINGRICH,
REP. DICK ARMEY AND THE HOUSE REPUBLICANS TO CHANGE THE NATION 43-44,
53 (Ed Gillespie & Bob Schelhas eds., 1994) (promising action to address the
problem of “frivolous” prison litigation).
9. See, e.g., Michael W. McConnell, Why Hold Elections? Using Consent
Decrees to Insulate Policies from Political Change, 1987 U. CHI. LEGAL F. 295,
297 (arguing that consent decrees limiting the power of future office holders
are anti-democratic).

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such consent decrees. In Duran v. Carruthers,10 for example,
New Mexico poured considerable resources into an attempt to
break the consent decree that its officials signed in the wake of
a riot at the New Mexico Penitentiary in which thirty-three
prisoners had died.11 The State argued that the requirements
of the decree went far beyond the requirements of federal law,
and thus violated the requirements of the Eleventh
Amendment.12
The court of appeals disagreed.
It examined each
challenged provision of the decree, and determined that the
remedies specified in the decree related to federally protected
rights. It noted that New Mexico could have proceeded to trial
to test whether the relief provided by the consent decree was
actually required by federal law; if such relief was required by
federal law, there could be no Eleventh Amendment violation.13
By agreeing to the consent decree, however, New Mexico
waived its right to contest the necessity of the provisions of the
consent decree under federal law.14 Only in the Fifth Circuit
did the argument presented in Duran gain much traction.15
Subsequent to PLRA, the Supreme Court considered a
similar argument in the context of Texas’ challenge to a
consent decree involving federal Medicaid provisions. In Frew
v. Hawkins,16 the Court reviewed a case in which the Fifth
Circuit had accepted Texas’ argument that, in order to enforce
a particular provision of a consent decree based on federal law,
a federal court first had to determine that a federal right had
been violated, and that enforcement of the provision in
question would address that violation.17 The Supreme Court
10. 885 F.2d 1485 (10th Cir. 1989).
11. Id. at 1486.
12. Id. at 1487.
13. Id. at 1487-91 (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)
(holding that state defendants are not protected by Eleventh Amendment
against litigation seeking injunctive relief for violation of federal law)).
14. Duran, 885 F.2d at 1489-91.
15. See Leltz v. Kavanagh, 807 F.2d 1243 (5th Cir. 1987) (refusing to
enforce a consent decree because the court found that the relief was based on
state law); Saahir v. Estelle, 47 F.3d 758, 761 (5th Cir. 1995) (refusing to
allow enforcement of a consent decree regarding prison conditions because,
the court found, the decree was not based on federal law).
16. 540 U.S. 431 (2004).
17. Frazar v. Gilbert, 300 F.3d 530, 542 (5th Cir. 2002) (holding that a
consent decree is not enforceable against a state except to vindicate a federal

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unanimously rejected that argument, reasoning that, given the
concession of the state defendants that they were not
challenging the entry of the consent decree, there could be no
Eleventh Amendment bar to its enforcement.18 While the
decree implemented the federal statute in a highly detailed
way, and required the state to take some steps that the statute
by its own force did not require, those features did not pose a
bar to enforcement of the consent decree:
The same could be said, however, of any effort to
implement the [statute at issue] in a particular
way. The decree reflects a choice among various
ways that a State could implement the Medicaid
Act. As a result, enforcing the decree vindicates
an agreement that the state officials reached to
comply with federal law.19
With the decision in Frew, the theory that the Eleventh
Amendment has a significant role to play in preventing states’
agreements to consent decrees has been rejected in its starkest
form.20 While occasional bills continue to be introduced in
Congress that would extend the PLRA restrictions on consent
decrees to other areas, these efforts have yet to be successful.21
Accordingly, the only question is the extent to which PLRA
actually restricts the ability of federal courts to approve
settlement agreements involving prison conditions-of-

right), rev’d sub nom., Frew v. Hawkins, 540 U.S. 431 (2004).
18. Frew, 540 U.S. at 439.
19. Id.
20. But see Horne v. Flores, 129 S. Ct. 2579, 2593-94 (2009) (while Fed.
R. Civ. P. 60(b)(5) provision allowing relief from injunctive judgment on the
ground that it is not equitable may not be used to challenge the legal
conclusions on which a prior judgment is based, the Rule does provide a
means for modification in light of changed legal or factual circumstances;
cautioning that consent decrees binding public officials may improperly bind
state and local officials to the policy preferences of their predecessors).
21. See, e.g., S. 489, 109th Cong. § 3 (2005) (providing that, four years
after the entry of a consent decree in any federal court in which a state or
local government is a party, the governmental party may file a motion
seeking to modify or vacate the consent decree, and further providing that the
“burden of proof” shall be on the party who originally filed the civil action to
demonstrate that the continued enforcement of the decree is “necessary to
uphold a federal right”).

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confinement litigation.
III. Legal Support for Consent Decrees Governed by PLRA
The relevant provisions of PLRA do not purport to ban
consent decrees; they instead mandate that federal courts
refuse to approve any consent decree that does not meet the
general requirements for approval of relief in a prison
conditions-of-confinement case.22 These familiar requirements
are as follows:
Prospective relief in any civil action with respect
to prison conditions shall extend no further than
necessary to correct the violation of the Federal
right of a particular plaintiff or plaintiffs. The
court shall not grant or approve any prospective
relief unless the court finds that such relief is
narrowly drawn, extends no further than
necessary to correct the violation of the Federal
right, and is the least intrusive means necessary
to correct the violation of the Federal right. The
court shall give substantial weight to any
adverse impact on public safety or the operation
of a criminal justice system caused by the relief.23
The Act does not prohibit private settlement agreements
that do not comply with the PLRA limits on relief if the only
remedy provided by the agreement is reinstatement of the
litigation.24 Nor does the Act bar a plaintiff who claims that a
settlement agreement has been breached from seeking state
court enforcement of a remedy.25
The only case that comments on post-PLRA prison
condition settlements is Cason v. Seckinger,26 in which the
Eleventh Circuit reversed the district court’s termination of a
pre-PLRA consent decree. The court held that the plaintiffs
22.
23.
24.
25.
26.

See 18 U.S.C. § 3626(c) (2006).
18 U.S.C. § 3626(a)(1)(A) (2006).
18 U.S.C. § 3626(c)(2)(A) (2006).
18 U.S.C. § 3626(c)(2)(B) (2006).
231 F.3d 777 (11th Cir. 2000).

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were entitled to an evidentiary hearing prior to a ruling on the
termination motion; that the possibility of a future violation of
law from existing practices would not prevent termination; and
that
particularized
findings
and
analysis
of
the
appropriateness of continued injunctive relief were necessary
to continue such relief.27
Significantly, the court of appeals discussed the need for
particularized findings in the context of a defendant’s motion
for termination. The court recognized that this requirement
did not apply to the parties’ agreements regarding injunctive
relief; to the contrary, the court noted that the parties retain
their ability to reach stipulations, and have those stipulations
approved by the court, in the context of cases covered by PLRA:
Of course, we do not mean to suggest that the
district court must conduct an evidentiary
hearing about or enter particularized findings
concerning any facts or factors about which there
is not dispute. The parties are free to make any
concessions or enter into any stipulations they
deem appropriate.28
This dictum in Cason is the only published decision I could
locate discussing the issue of the parties’ freedom to meet the
statutory requirements of PLRA through stipulation. It is fully
consistent with the language of PLRA, which recognizes that
consent decrees will continue to exist.29
It is also consistent with general principles of legal
analysis. In Local Number 93, International Association of
Firefighters v. City of Cleveland,30 the Supreme Court
considered a very similar issue. That case involved a section of
Title VII of the Civil Rights Act of 196431 that prohibits any
court from ordering injunctive relief benefitting any employee
who had not been the victim of discrimination. The Court
27. Id. at 781-85.
28. Id. at 785 n.8.
29. 18 U.S.C. § 3626(c)(1) (2006) (specifying the conditions for entry of a
consent decree in a case subject to the restrictions of PLRA). Thus, it cannot
be argued that consent decrees are prohibited under PLRA.
30. 478 U.S. 501 (1986).
31. 42 U.S.C. § 2000e-5(g) (2006).

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considered whether this provision prohibited court approval of
a consent decree utilizing racial preferences that might benefit
persons who were not the actual victims of racial
discrimination. It rejected that argument, relying on its
understanding of the history of the Title VII provision, which it
construed as intended to prevent employers from being forced
to eliminate racial discrimination through remedies that aided
non-victims, but not to preclude employers from voluntarily
remedying discrimination in this manner.32 The Court went on
to articulate the principles that govern the scope of consent
decrees suitable for approval by federal courts:
Accordingly, a consent decree must spring from
and serve to resolve a dispute within the court’s
subject-matter jurisdiction.
Furthermore,
consistent with this requirement, the consent
decree must come within the general scope of the
case made by the pleadings and must further the
objectives of the law upon which the
complaint
was based. However, in addition to the law
which forms the basis of the claim, the parties’
consent animates the legal force of a consent
decree.
Therefore, a federal court is not
necessarily barred from entering a consent
decree merely because the decree provides
broader relief than the court could have awarded
after a trial.33
Federal law thus recognizes a broad area in which
defendants may decide to stipulate to relief without requiring
plaintiffs to make an evidentiary showing justifying that relief.
Necessarily, this scope is particularly wide with regard to
issues in which the existence of a violation of federal law is
dependent on proof of particular facts, or where a particular
violation might be addressed in various ways.34
32. City of Cleveland, 478 U.S. at 520-22.
33. Id. at 525 (internal citations, quotation marks, and brackets
omitted). Frew cited this language with approval. Frew v. Hawkins, 540
U.S. 431, 438 (2004).
34. The Court’s classic expression of this principle occurs in Swift & Co.
v. United States:

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IV. Post-PLRA Consent Decrees
My office has collected a number of examples of post-PLRA
consent decrees and related orders.35 Although this collection
includes but a tiny sample of the variety of actual post-PLRA
orders, the amount of diversity in form, language and context
of these orders is striking. Many of these orders are not called
orders; they use a variety of procedural devices, including
Federal Rules of Civil Procedure Rule 68 offers of judgment,
and some involve relatively minor aspects of a case and are
relatively informal while others closely resemble traditional
consent decrees.
A. Forms of Orders
At least in my office’s collection, the most common name
for these documents is “Settlement Agreement,” or some close
variant, even when the document clearly contemplates some
form of court enforcement.36 For example, the fifty-seven page
“Memorandum of Agreement” in Doe v. Cook County37

Here again the defendants ignore the fact that by
consenting to the entry of the decree without any findings of
fact, they left to the Court the power to construe the
pleadings, and, in so doing, to find in them the existence of
circumstances of danger which justified compelling the
defendants to abandon all participation in these businesses,
. . . and to abstain from acquiring any interest hereafter.
276 U.S. 311, 329 (1928) (internal quotation marks omitted).
35. This article does not address agreements that contemplate relief only
in state court or relief limited to the reinstatement of the litigation pursuant
to 18 U.S.C. § 3626(c)(2) (2006). Further, this article is based on my
collection of orders related to PLRA, and that collection is far from complete.
I do not necessarily endorse any of the orders discussed in this article as
models for future litigation.
36. The term “settlement agreement” is ambiguous because such
documents may or may not be enforceable in federal court. In order for
settlements in federal cases that have been dismissed to be enforced, the
terms of the settlement must be reflected in some form in the order of the
court reflecting acceptance of the agreement. See Kokkonen v. Guardian Life
Ins. Co., 511 U.S. 375, 381 (1994).
37. No. 99 C 3945 (N.D. Ill. Feb. 10, 2000) (on file with author).

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regulates conditions of confinement at the Cook County, Illinois
Juvenile Temporary Detention Center. The Memorandum of
Agreement provides that, upon its approval by the court, the
case will be dismissed without prejudice, but the court will
expressly retain jurisdiction to enter any orders necessary or
appropriate to enforce the terms of the agreement.38
Other agreements are clearly designated as consent
decrees.39 There is no necessary difference in content between
documents labeled “consent decree” and those labeled
“settlement agreement” that contemplate court enforcement of
the negotiated provisions. While all the consent decrees are
signed by the district judge, some settlement agreements
contemplating relief enforceable by the court are approved by
separate orders while others are simply signed as orders by the
judge.40
Some orders that were in fact adopted by stipulation of the
parties do not give evidence of that fact on their face; they
simply appear in the record as orders of the court, reciting the
findings required pursuant to 18 U.S.C. § 3626(a) for the entry
of relief.41 In some cases, this form may simply reflect that the
order embodies a stipulation for relief that the parties did not
consider of great consequence in the course of the litigation. In
other cases, this form may be desired by defendants who find it
easier to be ordered by a federal court to take some action than
to agree openly to such relief.
One order in my office’s files is, in form, a notice of
acceptance of offer of judgment. This document is particularly
interesting because the attached offer of judgment contains
only defendants’ offer of attorneys’ fees along with statements
of intent regarding various substantive matters, including an
offer to close the local county jail by the date by which plaintiffs
were required to accept or reject the offer of judgment. The
offer says nothing, however, about stipulating to the required
PLRA requirements, or about whether defendants agreed that
38. Id. at 6.
39. See, e.g., Presley v. Epps, No. 405-cv-00148 [proposed] Consent
Decree (N.D. Miss. Feb. 20, 2006) (accepted by Minute Order, Apr. 26, 2006)
(on file with author).
40. Cf. Kokkonen, 511 U.S. 375.
41. See, e.g., Carty v. Turnbull, No. 94-78, Order at 1-2 (D.V.I. Sept. 20,
2000) (on file with author).

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the various promises in the offer of judgment could be enforced
by the court if plaintiffs accepted the offer.42
Notwithstanding the ambiguities in the offer of judgment,
the final judgment in the case filed two days later recites that
the terms of the judgment meet the requirements of PLRA and
comply in all respects with 18 U.S.C. § 3626(a). Further, the
final judgment orders the defendants to comply with the
provisions set forth in the offer of judgment.43 Settlement
agreements also on occasion utilize more than one method of
meeting PLRA’s requirements. For example, in a juvenile
parole case, the parties stipulated both that the case was not
covered by the PLRA, and that the required PLRA findings had
been satisfied.44
Finally, the parties can stipulate to other PLRA findings,
in addition to those required under § 3626(a)(1). For example,
18 U.S.C. § 3626(a)(3) prohibits federal courts from issuing
orders releasing prisoners from confinement unless a previous,
less intrusive order has failed to cure the violation of law and
the defendant has had a reasonable amount of time to comply
with previous orders for relief. In addition, such orders can be
issued only by three-judge courts.45 The parties can stipulate
to the required findings, with a three-judge court then issuing
the release order.46
B. Language Sufficient to Comply with PLRA
One traditional advantage of consent decrees for
defendants was that in many such decrees providing for
injunctive relief, plaintiffs would accept language in which the
42. Am. Civil Liberties Union of New Mexico v. Bd. of County Comm’rs
of Valencia, No. 97-1318 LH/WWD, Notice of Acceptance of Offer of
Judgment, Exh. 1 (D.N.M. Dec. 8, 1997) (on file with author).
43. Am. Civil Liberties Union of New Mexico, No. 97-1318 LH/WWD,
Final Judgment at 2 (D.N.M. Dec. 10, 1997).
44. L.H. v. Schwarzenegger, No. 2:06-CV-02042-LKK-GGH at 1, 4 (E.D.
Cal. Oct. 7, 2008) (on file with author).
45. 18 U.S.C. § 3626(a)(3) (2006).
46. See Inmates of Occoquan v. Barry, No. 86-2128 (JLG), Population
Consent Order (D.D.C. Jan. 20, 1998) (order reciting various required
findings for a prisoner release order is entitled “Population Consent Order”
and is signed by three judges, with the parties’ consent noted on the order)
(order on file with author).

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defendants would continue to deny any violation of law.
Defendants frequently wanted such provisions, both for
political reasons and for the purpose of defending damages
actions related to the injunctive claims, while the settling
plaintiffs were often willing to agree to the defendants’ denial
of liability in return for the substantive relief offered in the
consent decree.
The requirements for the entry of relief in 18 U.S.C. §
3626(a)(1) may appear in some tension with any attempt by
defendants to continue to deny legal liability while agreeing to
the entry of the relief sought by plaintiffs. As a consequence, a
number of settlement agreements post-PLRA include explicit
concessions by defendants that the conditions at issue violate
the law and that an injunction is necessary to address that
violation.
The language in a consent order involving the Women’s
Detention Center in Baltimore is typical:
The relief granted by this Consent Order is
narrowly drawn and extends no further than
necessary to prevent irreparable harm and injury
to plaintiffs, and the relief afforded by this
injunction is the least intrusive means necessary
to prevent irreparable harm as the relief is
limited to that which is necessary to prevent an
unreasonable risk of harm and injury to the
health and safety of plaintiffs.47
This consent order is signed by the court. The order also finds,
“based upon the unopposed evidence regarding current
conditions at WDC” that the relief is appropriate, and it recites
that the court has made the findings necessary pursuant to 18
U.S.C. § 3626(a).48 It is highly unlikely that this explicit
concession of liability by the defendants would have appeared
but for the existence of PLRA.
At the same time, many post-PLRA agreements contain
explicit denials that defendants have conceded the illegality of
47. Duvall v. Glendening, No. JFM-94-2541, Consent Order at 1-2 (D.
Md. Aug. 22, 2004) (on file with author).
48. Id. at 2.

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their conduct, in language similar to such provisions in
traditional consent decrees.49 Another common feature is to
allow defendants to stipulate to an “alleged” violation of rights,
as follows:
The parties stipulate that the terms of the
Settlement Agreement are narrowly drawn,
extend no further than necessary to correct the
alleged violation of Plaintiffs’ constitutional
rights, are the least intrusive means necessary to
correct the alleged violation
of
Plaintiffs’
constitutional rights, and that the Proposed
Order submitted to the District Court pursuant
[to this Settlement Agreement] will include these
findings.50
One strategy that some settling parties adopt is to combine
a denial of liability with a stipulation that the agreement meets
the requirements of PLRA, without specifically setting forth
those requirements.51 As noted above, another strategy is to
agree to a form of order in which the court makes the
findings.52 In other cases the court simply makes the required
findings.53 A final strategy is for defendants to waive the right
49. A typical formulation appears in the settlement agreement in New
Times, Inc. v. Ortiz, 1:00-cv-00612-PSF-OES, Settlement Agreement at 9 (D.
Colo. Aug. 19, 2004) (on file with author): “This Settlement Agreement does
not constitute an admission of liability against the interest of any party. It is
a compromise of a disputed claim for the sole purpose of avoiding the
expense, hardship and uncertainty of litigation.”
50. Id. at 8.
51. See, e.g., McClendon v. City of Albuquerque, No. CV-95-24-MV/ACT,
Stipulated Agreement Between Plaintiff Intervenors and Defendants at 1-2
(D.N.M. June 30, 2005) (on file with author).
52. See, e.g., Am. Civil Liberties Union of New Mexico v. Bd. of County
Comm’rs of Valencia, No. 97-1318 LH/WWD, Final Judgment at 2 (D.N.M.
Dec. 10, 1997) (the requisite PLRA findings all appear in the order accepting
the offer of judgment); Carty v. Turnbull, No. 94-78, Order (D.V.I. Sept. 20,
2000) (there is no stipulation by the parties, but rather the findings appear in
the court’s order, with counsel for both parties signing the order).
53. Jones’ El v. Berge, No. 00-C-0421-C, Opinion and Order at 8-9 (W.D.
Wis. June 25, 2002) (making required findings in order separate from order
accepting the parties’ settlement agreement) (on file with author). The
settlement agreement had referred to “alleged” violations and contained
defendants’ denial of liability, although defendants also stipulated that the
agreement was consistent with all PLRA requirements. Jones’ El v. Berge,

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to challenge the settlement for a set period. Thus, while
defendants in such agreements may not affirmatively concede
that the proposed agreement meets the PLRA requirements,
they explicitly agree to forego any challenge for a specified
period of time.54
V. Conclusion
Whatever the form, court-ordered relief agreed to by the
parties persists, despite PLRA, because in a variety of
circumstances it remains in defendants’ interest to negotiate
such agreements. As the Supreme Court has recognized,
consent decrees allow the parties to “save themselves the time,
expense, and inevitable risk of litigation.”55 The persistence of
consent decrees in the post-PLRA world demonstrates not only
the truth of this observation by the Supreme Court, but the
continued relevance of prison conditions-of-confinement
litigation. Given the extent to which PLRA generally places a
thumb on the scales of justice in favor of defendants, the fact
that so many defendants find it necessary to agree to consent
decrees suggests the strength of the evidence that supports
plaintiffs’ claims.

No. 00-C-0421-C, Settlement Agreement at 11-12 (Jan. 24, 2002) (on file with
author).
54. Id. at 11. As noted above, it is not unusual for such settlements to
adopt more than one strategy to deter a defendant from challenging an
agreement on PLRA grounds after the agreement has been signed.
55. United States v. Armour & Co., 402 U.S. 673, 681 (1971).

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