Kaleidoscopic Consent Decrees: School Desegregation and Prison Reform Consent Decrees After the Prison Litigation Reform Act and Freeman-Dowell

Abstract

Since the Prison Litigation Reform Act (PLRA) and its changes to modification and termination standards in school desegregation, kaleidoscopic changes have altered the character of an important dispute resolution tool: the consent decree. Traditionally, the consent decree has been recognized as a hybrid between a judicial order and a settlement agreement entered into by parties. However, the modification and termination standards for both prison reform consent decrees and school desegregation consent decrees have changed. Despite the changes, some courts have concluded that prison reform and school desegregation consent decrees continue to be governed by similar modification and termination standards. Although there has been much legal commentary recently about the changes to prison reform cases brought about by the PLRA and about the constitutionality of the new statutory standards of the PLRA, there has been no discussion regarding the impact of the PLRA’s statutory requirements in altering the nature of prison reform consent decrees. There has also been no discussion about the changes in school desegregation consent decree termination standards or the parallels between these changes and the changes in prison reform consent decrees. Now, eight years since the passage of the PLRA and over ten years since the establishment of new school desegregation termination standards, after kaleidoscopic application of consent decree modification standards by courts and unnoticed changes in the character of consent decrees, discussion of the broader implications of the these new standards is in order. The purpose of this Comment is to compare the traditional consent decree modification and termination standards with the new modification and termination standards for prison reform and school desegregation consent decrees to demonstrate how the new standards (1) have changed the character of consent decrees in these two areas to be more characteristic of judicial orders, (2) have altered traditional incentives to enter into consent decrees in these areas, and (3) will allow courts in the prison reform setting to achieve more success in the shared goal of more efficiently returning control over prisons to state and local control than courts will achieve in the school desegregation setting.