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Litigation Journal

Fall 2020: Standards

A Practical Approach to the Pretrial Detainee Docket

Virginia M Kendall


  • More than 10,000 prisoner conditions cases were filed in the federal courts last year.
  • A significant portion are claims that the conditions of their confinement are unconstitutional.
  • No claims of excessive force, corruption, or physical injury are permitted in the Early Access and Relief program hearings.
A Practical Approach to the Pretrial Detainee Docket
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Mr. Jones is upset. He is a pretrial detainee in the Cook County Jail and is venting about his cellblock. He thinks there is mold in the shower that might be causing him to sneeze and snore. He doesn’t think the sheriff is keeping the shower stalls clean. He complains for at least 10 minutes about how difficult it is to live under these conditions. His lawyer, appointed by the court for this day only, is sitting to his right. This is all part of the Northern District of Illinois’s Early Access and Relief (EAR) program. Because Mr. Jones agreed to participate in the EAR program, within two months after filing his case, he already has access to a lawyer, early access to the discovery regarding his complaint, and early access to a judge who will listen and see if his case can be swiftly resolved.

Mr. Jones says his constitutional rights have been violated and he wants $250,000 to resolve his case. He is appearing with his lawyer via videoconference from the Cook County Jail. The Cook County assistant state’s attorney (ASA) who represents the jail stands in my courtroom and responds by citing the discovery that he provided to Mr. Jones and his lawyer the week before. The ASA has the sanitation reports from the cell block cleanings showing the regular sanitation of the showers; the policy that requires inmates to use cleaning supplies to clean their own showers in addition to third-party cleanings; and a possible fatal flaw to Mr. Jones’s case: He has not filed a grievance about the problem, thereby not exhausting his administrative remedy first.

Rather than waiting months for that motion to dismiss (which inevitably would be filed) to be decided, possibly after a live court hearing with testimony to determine whether he can proceed, Mr. Jones on this day has the lawyers intently listening to his complaint. The tenor of the hearing is respectful, calm, and nonjudgmental.

Early access to the judge is important to Mr. Jones. He wants me to know what he is going through. He has the exclusive ear of the court. I sympathize with the situation, and we discuss recent cases from the Seventh Circuit about deliberate indifference and failing to exhaust administrative remedies. We review the jail policy and the logs of the cleaning (something kept diligently since a consent decree ordered jail officials to monitor sanitation).

I ask the ASA if the jail would consider a solution to Mr. Jones’s situation despite his admitted failure to exhaust his administrative remedy by filing a grievance first. The jail proposes an extra deep cleaning of his cell block within 30 days, extra cleaning supplies on the floor for inmates, and a $100 deposit into Mr. Jones’s commissary account. Mr. Jones talks with his lawyer and demands $200. The case settles for the equitable relief plus $150—just two months after filing.

How the Program Works

In 2019 in the Northern District of Illinois, 683 pro se filers were given attorneys after seeking in forma pauperis status and the appointment of counsel. Of those cases, 62 percent were filed by pretrial detainees, held primarily in the country’s largest pretrial detention facility, the Cook County Jail, or in one of the institutions in the Illinois Department of Corrections system, complaining of prison conditions. These cases are assigned randomly to the district court judges who individually determine whether the pro se detainee is entitled to attorney representation for his or her prison conditions claim. Many judges granted the motions by relying on a unique pro bono system in our district that taps the lawyers of the trial bar. When a lawyer is granted trial bar status in this district, the lawyer agrees to take on a pro bono assignment as part of that trial bar certification. The court agrees not to appoint that attorney more than once every two years. Pretrial detainees are not the only people seeking court-appointed representation in civil proceedings in our district. Many pro se filers are seeking an attorney to bring an employment discrimination claim or a civil rights claim, as well as any of the dozens of other types of cases covered by federal jurisdiction. Nevertheless, nearly all appointments are being given to pretrial detainees complaining of prison conditions.

Of the types of cases that pretrial detainees bring, a significant portion are claims that the conditions of their confinement are unconstitutional. They complain of mice, insects, mold in the shower, broken sinks or toilets, drain flies, and dust. They also have claims for a variety of other living conditions, such as not being provided a kosher diet or not having the type of religious service offered at the facility that they want. These are the types of cases that the assigned judge, with the aid of the law clerks employed by the district to handle solely the prisoner docket, screens for potential review in an EAR hearing. No claims of excessive force, corruption, or physical injury are permitted in the EAR hearings.

Once a case is identified as a candidate for the EAR hearing, the detainee is notified of the possibility of accessing early discovery, an attorney, and the court within a month. The detainee may sign up for the program or not—it is his or her choice.

If the detainee chooses an EAR hearing, it will be conducted by a different judge; namely, me. I created the EAR program with support from Clerk of Court Tom Bruton and Cook County Sheriff Thomas Dart, and I currently conduct all of the EAR hearings in the district.

The Northern District of Illinois has been conducting EAR hearings for three years. Usually, 10 to 12 cases are heard in one day. Ninety percent settle during the hearing, effectively closing the cases, removing them from the assigned judge’s docket, and giving some early relief to pretrial detainees. Of course, there are also no appeals from the settlements.

Why the Program Is Effective

These hearings are effective for numerous reasons. First, the trial bar lawyers are eager to sign up for this type of pro bono representation. It takes much less time than handling a regular case from start to finish. If an attorney chooses to be an EAR hearing attorney when tapped for pro bono assignment, the attorney is assured of three days of work. The first day will be a short training session conducted by the court. The second will be when the attorney receives the discovery and meets with the client ahead of the hearing. The third will be the hearing day. When the hearing day is over, so is the trial attorney’s pro bono obligation for two years. In talking with the volunteers to date, many report to me that they have felt quite fulfilled helping someone under these circumstances, and they recognized that the detainees just needed someone to listen to them and understand.

Second, the state’s attorney’s office expends significantly fewer hours per case in collecting the early discovery rather than writing motions to dismiss or conducting Pavey hearings (hearings on whether an inmate failed to exhaust administrative remedies). The amount of money spent on settlements per case also is lower if the case is settled at an EAR hearing.

Third, the detainee gets fast relief for his or her claim. Sometimes it is merely getting someone a low-bunk permit for back pain, a special diet for a health claim, or a new representative to come to the jail to offer a religious service. The time from the start of the claim to the result is a fraction of the time a full federal case would take to complete. Resolving pretrial detainee cases through the EAR hearings lightens the workload for the judges and the clerk’s office.

To make sure that the process is voluntary on all sides, the assigned judge can always refuse to allow the case to be heard in an EAR hearing. Only one Northern District of Illinois judge has declined a pretrial detainee’s request to have his case transferred to me for an EAR hearing. If I determine at any point in the process that the case is not amenable to early access and relief, I inform the detainee and send it back to the assigned judge. Further, at any point in the hearing, the detainee can always reject a settlement offer and return to the assigned judge to proceed without counsel.

The Barrier to Success

One impediment remains to a thoroughly successful early access program, and that is the Prisoner Litigation Reform Act (PLRA), ironically, a statute designed to streamline prisoner litigation and prevent abusive and repetitive filings. Under the PLRA, if a judge grants a detainee in forma pauperis status, it does not mean that the $350 filing fee is permanently waived. Instead, it means that a portion of the inmate’s commissary account is depleted by an order of the court each month until the entire $350 is paid. This requires the clerk to determine what amount must be deducted each month, and this amount can be as little as $1.50 per month. Each transaction requires work by both the clerk’s staff and the jail’s staff each month. The early termination of the case would appear at first blush to have a fourth significant benefit—reducing the workload of the taxpayer-funded sheriff’s office and the clerk’s office on these monthly debits. Yet, that is not the case currently.

The PLRA requires that the entire amount of the filing fee be paid regardless of the case’s outcome. For example, if an inmate files a conditions case that is dismissed for failure to exhaust administrative remedies, the inmate is still required to have his or her account depleted monthly until the entire $350 is paid in full. Often the amount owed on the filing fee is much greater than the amount being offered to settle. If the court could waive the remainder of the filing fee withdrawals, the case could be resolved. But the court cannot do that currently. Recognizing the success of EAR hearings, Congress should consider a potential amendment to 28 U.S.C. § 1915. For example, language such as this could be added:

Notwithstanding subsection (b), if a prisoner opts to participate in an Early Access and Relief (EAR) program, and the court determines that the timely settlement of the matter will permit the court to allocate its resources efficiently, the court may order the clerk to waive the filing fee or remainder thereof, provided that the matter is resolved within 90 days of the answer to the complaint.

More than 10,000 prisoner conditions cases were filed in the federal courts last year. Amending PLRA provisions that counteract the effectiveness of early resolution programs makes good sense. There is a need to efficiently and respectfully close a portion of those cases to lighten the load of district court judges. Programs such as the Northern District of Illinois’s EAR hearings serve the purpose of the PLRA by cutting down how long courts spend on claims that can be disposed of quickly and effectively, while helping detainees get rapid relief for their claims.