Over the 50-year history of the Federal Rules of Appellate Procedure, the number of federal appeals by self-represented, incarcerated litigants has risen dramatically, and few academics have examined the procedural rules that impact inmate appeals in federal court. But new research by Penn Law professor Catherine Struve examines how the procedure for inmate appeals has evolved over the past half century and how the use of technology could change those procedures in the future.
Her article, “The Federal Rules of Inmate Appeals,” is forthcoming in the Arizona State Law Journal. Struve teaches and researches in the fields of civil procedure and federal courts. She served from 2006 to 2015 as Reporter to the Judicial Conference Advisory Committee on Appellate Rules, and she was appointed in fall 2017 to serve as Associate Reporter to the Judicial Conference Committee on Rules of Practice and Procedure. She stresses, however, that the views expressed in her article are solely her own and do not necessarily reflect the views of others in the rulemaking process.
The original Appellate Rules created in the 1960s were intended to promote access to appellate justice for poor and incarcerated litigants, writes Struve. They were created at a time when the Supreme Court, the executive branch, and Congress were all in the midst of efforts to improve treatment of poor defendants in the criminal justice system.
During the early years of the original Appellate Rules, procedural developments — on issues such as filing deadlines for incarcerated litigants — were made through a combination of court decisions and the federal rulemaking process, she explains. The Supreme Court in Fallen v. United States held that Floyd Charles Fallen had timely filed his notice of appeal when he had delivered it to the prison authorities within the deadline for his direct criminal appeal — even though the notice did not reach the court until after that deadline.
The case Houston v. Lack extended Fallen’s holding beyond criminal appeals to civil appeals, Struve adds, and the decision in Houston spurred new rulemaking which codified the prison mailbox rule for notices of appeal and for filings in the courts of appeals.
“[I]t is impossible to tell whether the rule changes would have resulted without such a nudge from the Court,” Struve writes. “But the rulemakers, in turn, provided distinctive value by incorporating information gathered from stakeholders in a deliberative, iterative process.”
But after the decisions and rulemaking that expanded access, Struve notes, the swelling federal docket led to case-management practices, a number of which significantly affect pro se inmate appeals. In such appeals, Struve notes, oral argument is less likely, the issuance of a published opinion is less likely, and staff attorneys are more likely to be involved in assisting the decisional process.
During the mid-1990s, Congress passed two landmark bills, the Prison Litigation Reform Act (PLRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA), which were designed to, and did, impose barriers to inmate appeals.
AEDPA tightened what it termed the “certificate of appealability” requirement and extended that requirement to federal prisoners; federal and state prisoners alike must now seek permission to appeal by making “a substantial showing of the denial of a constitutional right.” The PLRA requires inmates who seek to appeal in forma pauperis (i.e., as poor persons) to make periodic payments from their prison accounts; directs the courts of appeals to proactively screen such appeals for lack of merit; and bars prisoners who have incurred three “strikes” (roughly, dismissals for frivolity or failure to state a claim) from proceeding in forma pauperis unless the prisoner faces “imminent danger of serious physical injury.”
The most significant new driver of change in procedure for inmate appeals in the future, Struve argues, may be the availability of technology in prisons. Struve compares the ways in which current and proposed Rules handle appeals by represented litigants, who generally file electronically, and by pro se litigants, who frequently lack access to computers.
Existing initiatives that allow electronic filing by prisoners in state correctional institutions are governed by local court provisions and the practices of the relevant institutions. Inmates typically provide the filing to the prison staff, who scan the document and email it to the court.
But a new pilot program with the federal Bureau of Prisons will provide pro se prisoners access to a digital kiosk, which accepts typed or hand-written documents, to file documents in civil cases in participating district and appellate courts.
“[T]he e-filing programs might provide better assurance that notice of court orders will timely reach inmate litigants — but better still would be a system that allows inmates themselves to view electronic versions of the docket in their case,” argues Struve.
“Whether or not one agrees with the substantive judgments that Congress has made concerning inmate claims, all participants in the system should be able to agree on the basic value of access to appellate justice,” Struve concludes. “An inmate should not lose the right to appellate review merely because he or she lacks the options available to a non-incarcerated litigant for timely filing of a notice of appeal.”