The prison population explosion is reverberating at the Supreme Court.
As the number of state and federal prisoners surges, so has the high court's docket of paupers' cases -- appeals from indigent litigants, the vast majority of them prisoners, who cannot afford to pay the court's normal $300 filing fee and the costs of printing 40 copies of each brief.
Until about five years ago, the number of paid and paupers' cases were about even, each accounting for half the 4,000 or so cases filed with the court each year. Then the number of in forma pauperis cases, as the court calls them, began to shoot up: to 2,352 during the 1987 term, 2,632 in 1988, and 2,885 last term.
This term, the pauper's docket has already crossed the 3,000 mark -- at 3,032 as of last Wednesday. If things continue at this rate until the court recesses in late June or early July, the number of paupers' cases should reach 3,400, a 70 percent increase over the last decade.
The number of paid cases, by contrast, actually declined during that period, from 2,222 in 1980 to 2,032 last year, and just 1,747 so far this year.
The reason for the jump in indigent filings is simple to decipher: As the prison population has dramatically expanded, with more and more prisoners serving longer and longer terms, the number of cases they file in lower courts challenging their convictions grows. Eventually, that rising tide of prisoner litigation makes its way to the Supreme Court.
In addition, an entirely new category of cases was created by the adoption of the federal sentencing guidelines, which for the first time allowed defendants convicted of crimes to challenge the sentences imposed.
Of the many paupers who call on the Supreme Court to hear their cases, few are chosen -- just 24 of the 125 cases granted review this term, compared with a decade low of seven in 1981. (The actual number of hours of oral argument and, ultimately, rulings is lower than that because some of the paid cases are consolidated into one hearing. The total hours of oral argument in paid cases -- a better measure -- accepted for review this term is 89.)
Oddly enough, the court's rules do not specify how impoverished one need be to qualify for indigent status. The papers on which would-be paupers describe their financial status are circulated to all nine justices, and the court does occasionally deny applications for pauper's status.
The jump in paupers' cases has not gone unnoticed by the justices, having been noted at the weekly conference where they make their way through the pile of petitions seeking high court review. But the brunt of the impact falls elsewhere.
The clerk's office has added a third employee to help with the processing of paupers' petitions. And it means more work for the justices' law clerks, who are responsible for screening cases and identifying the ones they believe are worthy candidates for granting a petition for certiorari, the name of the writ which directs the record of a case to be filed with the Supreme Court for review.
The paupers' cases can often be analyzed and disposed of more quickly than other cases seeking review, because it is sometimes obvious they do not present "cert-worthy" issues, such as a split in the decisions of lower courts or an important question of federal law.
But law clerks struggling to make sense out of the often poorly written petitions can often struggle over them, worrying, as one recent clerk phrased it, that they might mess up and miss the next Gideon v. Wainwright, the landmark 1963 case in which a handwritten petition from a Florida prisoner prompted the court to rule that the Constitution guarantees a lawyer for all those charged with serious crimes.