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What making PACER free could mean for people in prison
In the 1990s, the federal judiciary created an electronic docket system. That system, PACER (Public Access to Court Electronic Records), offers access to court filings and related case information. Despite its importance, the system is antiquated and clunky. And at 10 cents a page, with few exceptions, it can be prohibitively expensive. In 2016, three legal nonprofits, the National Veterans Legal Services Program, the National Consumer Law Center, and Alliance for Justice, filed a class-action lawsuit against the federal government, arguing that the judiciary violates federal law by charging excessive fees for PACER access. [Matt Ford / New Republic]
The law at issue is the E-Government Act of 2002. The statute authorizes the judiciary to impose fees “only to the extent necessary” to provide “access to information available through automatic data processing equipment.” A federal district judge “accepted the challenger’s basic theory,” as the New York Times’s Adam Liptak reported. The case is now on appeal before the U.S. Court of Appeals for the Federal Circuit. [Adam Liptak / New York Times] (A bill introduced in Congress last week would go even further than the lawsuit to eliminate fees and modernize PACER.)
The plaintiffs point to the enormous gap between the $3 million it costs to operate PACER each year and the more than $146 million in fees it brought in in 2016. The excess fees, the plaintiffs point out, are used “to cover the costs of unrelated projects—ranging from audio systems to flat screens for jurors—at the expense of public access.” An array of organizations and individuals have filed amicus briefs in the case. Among them is former Senator Joe Lieberman, the sponsor of the 2002 law, whose brief argues that excessive PACER user fees “create a system in which rich and poor do not have equal access to important government documents.” [Matt Ford / New Republic]
Media organizations have also filed a supporting brief. The New York Times’s editorial board recently noted that its newsroom “has in recent years paid tens of thousands of dollars in fees for access to federal court documents. Such costs can be a burden on smaller newsrooms, many of which have struggled financially in recent years.” The Supreme Court, “often a late adopter of new technologies,” has made nearly all its new court filings available at no cost online. One of the lawyers for the plaintiffs in the lawsuit also told Liptak that the high court’s system “demonstrates that there isn’t any practical obstacle to making filings available for free.” And a local paper’s editorial board said, “For all the U.S. Supreme Court’s seeming formality and bureaucracy, accessing its rulings, opinions and related documents is easier than using an ATM, and it’s free.”
The amicus brief that has attracted the most attention in legal circles is that filed by seven former federal judges, including Richard Posner and Shira Scheindlin. The former judges “urge no particular legal outcome,” and “instead emphasize policy concerns the Court should keep in mind when deciding the case.” Their interests, they say, are “their ongoing commitment to fairness for all litigants, preserving the public’s positive perception of the judiciary, and the systemic well-functioning of the justice system.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]
Most people would not think of former federal judges as ordinary litigants, but “they have experienced both sides of the system.” As judges, their access to PACER was free and unlimited. Since leaving the judiciary, “amici must carefully consider whether each click is worth the cost.” Their conclusion? PACER should be free. “The economics of electronic information,” the brief says, “make that easy.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]
“The tragedy of PACER’s paywall,” they argue, is threefold: a blow to the legitimacy of the courts, diminished ability for those within or without the judiciary to accurately identify and address systemic issues, and the disadvantaging of pro se litigants, who are their own counsel. The brief looks at the plight of incarcerated litigants in some detail, noting that “access to the courts implies meaningful access to court records.” The Supreme Court has required that people in prison have some access to a law library and “the most comprehensive ‘law library’ of raw source material is PACER.” The former judges add that “unless the records in PACER are easily searchable, they might as well not exist for a pro se prisoner.” [Amicus Brief / National Veterans Legal Services Program, et al. v. United States]
Easier access to PACER alone cannot smooth out all of the many barriers that confront pro se litigants. In 2006, Thomas C. O’Bryant, a self-described jailhouse lawyer sentenced to life in prison in Florida, wrote an article for the Harvard Civil Rights-Civil Liberties Law Review about the challenges of research and litigation while incarcerated. “Comprehending the reality of pro se prisoner litigation requires looking beyond the case law and examining the average pro se prisoner, the challenges he faces, and the regulations imposed upon him and implemented by prison officials in response to governing laws.” [Thomas O’Bryant / Harvard Civil Rights-Civil Liberties Law Review]
O’Bryant’s assessment was bleak. The system, he wrote, “seems to prevent indigent prisoners from obtaining meaningful review of constitutional violations: undereducated prisoners, prisoners with mental disorders, unreliable memories of trial court proceedings, under-trained and under-educated law clerks, ‘psych inmates’ working as law clerks, law libraries with meager resources, restricted access to these law libraries, law clerks, and jailhouse lawyers—the list goes on.” [Thomas O’Bryant / Harvard Civil Rights-Civil Liberties Law Review]
In 2018, the Crime Report interviewed O’Bryant, still incarcerated in Florida. The situation, he said, has gotten worse. A major culprit is the replacement, in many prisons, of print materials and legal assistance with computer kiosks with legal database subscriptions. These digital resources are often more limited than their print counterparts. Furthermore, many people in prison lack the skills to navigate the electronic resources, particularly in the limited time that they are allowed in law libraries. [Adam Wisnieski / Crime Report]
After announcing his retirement from the Seventh Circuit Court of Appeals in 2017, Judge Richard Posner did an “exit interview” with Liptak of the Times. He told Liptak that “about six months ago, I awoke from a slumber of 35 years” and came to recognize the mistreatment of pro se litigants by the judiciary. [Adam Liptak / New York Times] Freeing PACER can only be a good thing for people in prison. The hope is that powerful former federal judges will continue their advocacy, on PACER costs and the many other barriers, until the promise of access to the courts for pro se litigants is fulfilled.
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