EX PA N D I N G INMATES’ ACCESS TO APPEALS on research by
CAT H E R I N E S T R U V E Professor of Law
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 University of Pennsylvania Law School 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,” appeared in the spring issue of 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.
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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 casemanagement 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.
