01 May 2007

The In Forma Pauperis SCOTUS Lottery

The filing fee in the United States Supreme Court is $300, and the binding and printing costs imposed by the Court cost a few thousand more dollars. Then, having an attorney draft the paperwork costs tens of thousands of dollars more. But, the impact of making a paid petition on the likelihood of review by the U.S. Supreme Court is considerable. Still, some petitioners take the cheap route, and some succeed.

From October, when the court's new term began, to March 1, the Supreme Court received 4,759 "in forma pauperis" petitions. That was 6 percent more than the court's previous term. Of this term, only 10 were granted review.

By contrast, the court received 1,186 standard petitions and granted review to 45. . . .

Passed in 1996, the Prison Litigation Reform Act imposed new hurdles, including a limit on an inmate's "in forma pauperis" petitions if judges rule that the filings are frivolous or malicious. In certain cases, indigent prisoners must also pay filing fees on an installment plan.

From here.

The article goes on to note that some important cases like Brendlin (involving the 4th Amendment rights of passengers in stopped cars) in the current term, and Gideon (the right to counsel), in a past one, have made important law.

Even among in forma pauperis cases, those, like Brendlin, where the petition is being written by an attorney, rather than the petitioner him or herself, are more likely to prevail, although in forma pauperis cases are still at a disadvantage.

Indeed, even bringing an in forma pauperis petition, knowing that your chances of failure in this time consuming enterprise are 99.7% requires an odd mix of insanity and hope. It isn't that the 96% certiorari failure rate for ordinary petitions is low either, but it can even be economically rational when the amount at stake for the client as a result of the precedent, even if not in the individual case at issue is a couple of million dollars or more, and there is an issue in the case with a real chance of securing review.

The IFP docket, as it is known, also is institutionally odd. Most petitions receive only cursory review by two law clerks (one for Stevens and one for the other Justices), who have a strong inclination to say no, and will be reviewing roughly 300 similar petitions. Capricious grants of goodwill by these demi-gods are necessary to even receive consideration. While many IFPs are frivilous, there is little doubt that meritorious cases are more likely to be overlooked on the IFP docket, than elsewhere. No clerk will ever be reprimanded for saying no to an IFP case. Indeed, usually, no one will ever no who made the de facto decision to deny a particular IFP review, until decades later.

The IFP docket does make up a non-trivial share of the total universe of cases heard on the merits by the Court, but just barely. IFPs without attorneys, furthermore, verge on making up a trival share of the whole.

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