                          In the
 United States Court of Appeals
              For the Seventh Circuit
                       ____________

Nos. 00-3981 & 00-4115
CEDRIC JOHNSON,
                                          Plaintiff-Appellee,
                             v.

GEORGE M. DALEY,
                                       Defendant-Appellant,
                            and

UNITED STATES OF AMERICA,
                                      Intervenor-Appellant.
                       ____________
         Appeals from the United States District Court
              for the Western District of Wisconsin.
       No. 98-C-0518-C—Barbara B. Crabb, Chief Judge.
                       ____________
       ARGUED APRIL 19, 2001—REARGUED EN BANC
        APRIL 8, 2003—DECIDED AUGUST 19, 2003
                     ____________


  Before FLAUM, Chief Judge, and POSNER, COFFEY,
EASTERBROOK, RIPPLE, MANION, KANNE, ROVNER, DIANE
P. WOOD, EVANS, and WILLIAMS, Circuit Judges.
  EASTERBROOK, Circuit Judge. Section 803(d) of the
Prison Litigation Reform Act, codified at 42 U.S.C.
§1997e(d), sets both absolute and relative limits on attor-
neys’ fee shifting. The district court held these limits
unconstitutional because they disadvantage prisoners
compared with other plaintiffs, whose recoveries under 42
2                                     Nos. 00-3981 & 00-4115

U.S.C. §1988(b) in constitutional-tort litigation are not
subject to any statutory maximum. Johnson v. Daley, 117
F. Supp. 2d 889 (W.D. Wis. 2000). Every court of appeals
that has considered this question has held, to the contrary,
that §1997e(d) is within Congress’ authority. See Boivin
v. Black, 225 F.3d 36 (1st Cir. 2000); Hadix v. Johnson,
230 F.3d 840 (6th Cir. 2000); Walker v. Bain, 257 F.3d 660
(6th Cir. 2001); Foulk v. Charrier, 262 F.3d 687 (8th Cir.
2001); Madrid v. Gomez, 190 F.3d 990 (9th Cir. 1999);
Jackson v. State Board of Pardons & Paroles, 331 F.3d 790
(11th Cir. 2003). Accord, Collins v. Algarin, 1998 U.S. Dist.
Lexis 83 (E.D. Pa. Jan. 9, 1998), affirmed by an equally
divided court under the name Collins v. Montgomery
County Board of Prison Inspectors, 176 F.3d 679, 686 (3d
Cir. 1999) (en banc). Like these other circuits, we hold that
§1997e(d) is rationally related to valid objectives and hence
is within the legislative power, whether or not it is wise.


                                 I
    Section 1997e(d) provides:
     (1) In any action brought by a prisoner who is
     confined to any jail, prison, or other correctional
     facility, in which attorney’s fees are authorized
     under [42 U.S.C. §1988], such fees shall not be
     awarded, except to the extent that—
         (A) the fee was directly and reasonably
         incurred in proving an actual violation of
         the plaintiff’s rights protected by a stat-
         ute pursuant to which a fee may be
         awarded . . . ; and
         (B)(i) the amount of the fee is propor-
         tionately related to the court ordered relief
         for the violation; or (ii) the fee was directly
         and reasonably incurred in enforcing the
         relief ordered for the violation.
Nos. 00-3981 & 00-4115                                          3

    (2) Whenever a monetary judgment is awarded in
    an action described in paragraph (1), a portion of
    the judgment (not to exceed 25 percent) shall be
    applied to satisfy the amount of attorney’s fees
    awarded against the defendant. If the award of
    attorney’s fees is not greater than 150 percent of
    the judgment, the excess shall be paid by the
    defendant.
    (3) No award of attorney’s fees in an action de-
    scribed in paragraph (1) shall be based on an hourly
    rate greater than 150 percent of the hourly rate
    established under [18 U.S.C. §3006A] for payment
    of court-appointed counsel.
    (4) Nothing in this subsection shall prohibit a
    prisoner from entering into an agreement to pay an
    attorney’s fee in an amount greater than the
    amount authorized under this subsection, if the fee
    is paid by the individual rather than by the de-
    fendant pursuant to [§1988].
Subsections (1) and (2) establish relative limits: fees must
be “proportionately related to the court ordered relief” and,
when monetary relief is awarded, the fees attributable to
that relief cannot exceed 150% of the damages. Subsection
(3) establishes an absolute limit at 150% of the hourly rate
for defense counsel under the Criminal Justice Act, times
the number of hours reasonably devoted to the litigation.
Because the CJA rate (set by the Judicial Conference of the
United States) currently is $90 per hour, the maximum that
the defendant may be directed to underwrite is $135 per
hour.† The total amount that an attorney may receive,


†
   Section 3006a, the Criminal Justice Act, authorizes payment
at $60 per hour for work in court and $40 per hour for other work.
It permits the Judicial Conference to raise the cap to the greater
                                                    (continued...)
4                                     Nos. 00-3981 & 00-4115

however, is greater, not only because the attorney is
entitled to 25% of the judgment under subsection (2) but
also because the client is free under subsection (4) to agree
by contract to pay more—out of the recovery or out of other
assets.
  This case shows how the statute works. Cedric Johnson
sued George Daley, the medical director of the Bureau of
Correctional Health Services for the Wisconsin Depart-
ment of Corrections, under 42 U.S.C. §1983, contending
that Daley subjected him to cruel and unusual punishment
by waiting three years before certifying that Johnson,
whose alcoholism had damaged his liver, was eligible for
a transplant at public expense. Johnson contended that
Daley had been deliberately indifferent to his serious


†
  (...continued)
of $75 per hour or an amount calculated with respect to cost-
of-living increases awarded to federal employees. In September
2000 the Judicial Conference authorized use of the $75 rate for
all work nationwide and determined that the inXation-adjusted
rate would be $113 per hour, but that appropriated funds did
not permit compensation at more than $75. The 2002 and 2003
appropriations acts for the judiciary provide funds sufWcient to
pay appointed counsel $90 per hour, and it is the policy of the
Judicial Conference that all work performed after May 1, 2002,
should be compensated at that level. Johnson’s case came to trial
in the district court before this increase, so the CJA maximum
at the time was $75, and the PLRA maximum therefore was
$112.50 per hour. It is possible that some of the legal work
performed on Johnson’s behalf is affected by the earlier $60 and
$40 maximums, which remained in effect in scattered districts. To
facilitate exposition, we use throughout the opinion the $90 CJA
funded rate, which implies a maximum of $135 per hour under the
PLRA. By employing this figure, we do not imply any view on the
question whether it is the right one, or whether instead $169.50
(150% of $113) is today’s cap. Compare Webb v. Ada County, 285
F.3d 829, 838-39 (9th Cir. 2002), with Hernandez v. Kalinowski,
146 F.3d 196, 201 (3d Cir. 1998).
Nos. 00-3981 & 00-4115                                     5

medical need. See Farmer v. Brennan, 511 U.S. 825 (1994);
Estelle v. Gamble, 429 U.S. 97 (1976). Johnson was put
on the eligibility list in June 1999 and appears to have
suffered no long-term injury from the delay. Nonetheless,
a jury agreed with Johnson that he should have been made
eligible sooner and awarded him $10,000 in compensatory
damages, plus $30,000 in punitive damages. Attorneys from
Foley & Lardner and Heller Ehrman White & McAuliffe
represented Johnson at the district judge’s request; Johnson
did not enter into an agreement with counsel under
§1997e(d)(4), so compensation depends entirely on the
application of subsections (1) through (3). Counsel asked the
judge to direct Daley to pay $92,997.20 in attorneys’ fees.
This request exceeds both relative and absolute maximums:
the relative cap under subsection (2) is $60,000 in fees
(150% of the judgment), and application of the absolute cap
in subsection (3) produces a lower award of $36,451.50.
(This figure comes from Johnson’s lawyers. Daley and the
United States have not questioned its accuracy, nor have
we plumbed the details of its calculation.) Counsel sought
compensation for 525.1 hours of work—much of it by
paralegals with rates under $135 per hour, but some
time by partners who contended that their market rate is
as high as $325 per hour. Daley did not deny that this legal
time had been reasonably devoted to the case, though he
did dispute the hourly rates.
  Under §1997e(d) counsel could receive a maximum of
$46,451.50 for legal services—$10,000 from the award plus
$36,451.50 extra from Daley. As we read subsection (2),
attorneys’ compensation comes first from the damages, as
in ordinary tort litigation, and only if 25% of the award is
inadequate to compensate counsel fully may defendant
be ordered to pay more under §1988. Cf. Gisbrecht v.
Barnhart, 535 U.S. 789 (2002) (using this approach in
Social Security cases, where any excess would be provided
by the Equal Access to Justice Act, 28 U.S.C. §2412(d),
6                                  Nos. 00-3981 & 00-4115

rather than §1988). The district court proceeded in a dif-
ferent way, first calculating counsel’s entitlement and then
determining how much of this should be satisfied from the
damages. After notifying the United States, which inter-
vened to defend the constitutionality of the statute, the
district court declined to enforce subsections (2) and (3).
Subsection (1)(B)(i), which provides that fees must be “pro-
portionately related” to the violation, is in the district
court’s view an appropriate cap—because the judge gets
to determine how high a “proportion” to use. The court
concluded that attorneys’ fees should be set at $80,000, or
200% of the judgment, under §1988, writing that this
level is not disproportionate to the damages. Next the
judge held that Johnson should contribute only $200 of
this out of the judgment, leaving him with $39,800 while
Daley has been ordered to pay a total of $128,578.81:
$10,000 in compensatory damages, $30,000 in punitive
damages, $79,800 in attorneys’ fees, and $8,778.81 in costs.
The record does not disclose how much, if any, of this tab
will be picked up by the State of Wisconsin as Daley’s
employer. Both Daley and the United States have appealed;
the appeal is limited to the amount by which the attorneys’
fees exceed the maximum allowed by §1997e(d)(2) and (3).
Counsel have not cross-appealed to seek a greater portion
of the damages awarded to Johnson.


                            II
                             A
  The district court held that §1997e(d)(2) and (3) are
incompatible with the due process clause of the fifth
amendment, which since Bolling v. Sharpe, 347 U.S. 497
(1954), has been deemed to include an equal-protection
principle. See, e.g., Vance v. Bradley, 440 U.S. 93 (1979).
Yet the Prison Litigation Reform Act (PLRA from now on)
does not rest on any of the powers granted by Article I of
Nos. 00-3981 & 00-4115                                       7

the Constitution; its genesis is §5 of the fourteenth amend-
ment, which says that “Congress shall have power to
enforce, by appropriate legislation, the provisions of this
article.” Legislation under the power granted by §5 is not
necessarily subject to limitations on the original grants of
national power; this is why Fitzpatrick v. Bitzer, 427 U.S.
445 (1976), holds that Congress may use its §5 power to
subject states to suit in federal court, despite the contrary
text of the eleventh amendment. So the question to ask
is whether §1997e(d) “enforces” the fourteenth amendment,
which points us to the equal protection clause in §1 of that
amendment without any need to detour through the fifth
amendment—for a law at odds with the fourteenth amend-
ment’s substantive provisions cannot be one to “enforce”
them. See, e.g., City of Boerne v. Flores, 521 U.S. 507 (1997);
University of Alabama v. Garrett, 531 U.S. 356 (2001).
  Legislation that does not burden a suspect class or af-
fect fundamental rights satisfies the equal-protection
requirement if the legislature could think the rule ration-
ally related to any legitimate goal of government. Prisoners
are not a suspect class; conviction of crime justifies the
imposition of many burdens. See, e.g., Connecticut Dep’t of
Public Safety v. Doe, 538 U.S. 1 (2003) (public identification
as a felon); Hudson v. United States, 522 U.S. 93 (1997)
(occupational debarment). Nor is there a fundamental right
to have one’s adversary, or the public treasury, defray all
or part of the cost of litigation. That is why we held the
three-strikes provision in the PLRA, 28 U.S.C. §1915(g),
compatible with the Constitution. See Lewis v. Sullivan,
279 F.3d 526 (7th Cir. 2002). Although prisoners enjoy
a fundamental right of access to the courts, see Lewis v.
Casey, 518 U.S. 343 (1996), there is no right of subsidized
access. See United States v. Kras, 409 U.S. 434 (1973). The
right to publish a newspaper does not imply a right to
governmental funding, nor does a right to read books
imply entitlement to a public library that circulates books
8                                  Nos. 00-3981 & 00-4115

without charge. A woman’s right to choose whether to
have an abortion does not imply a right to have the gov-
ernment cover the medical costs. See Maher v. Roe, 432
U.S. 464 (1977). A right to education does not imply a
right to free transportation to school. See Kadrmas v.
Dickinson Public Schools, 487 U.S. 450 (1988). A right to
petition for redress of grievances does not imply a right to
free writing paper and stamps. And a right to seek
redress in court does not imply entitlement to have some-
one else pay for your lawyer. The Supreme Court made
this pellucid, for prisoners in particular, when holding in
Murray v. Giarratano, 492 U.S. 1 (1989), that a right to
wage a collateral attack on one’s conviction does not en-
tail a right to counsel at public expense, even in a capital
case.
  Legislation singling out prisoners accordingly is an-
alyzed under the rational-basis standard—as the plaintiffs
concede, and as the Supreme Court held in McDonald v.
Board of Election Commissioners, 394 U.S. 802 (1969). See
also Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997) (applying
the rational-basis standard to 42 U.S.C. §1997e(e), a
part of the PLRA that requires prisoners to show physical
injury as a condition to recovery, and holding that the
statute is valid under that standard). Cf. Marshall v.
United States, 414 U.S. 417 (1974). Chief Justice Warren
explained in McDonald how the rational-basis standard
works:
    The distinctions drawn by a challenged statute
    must bear some rational relationship to a legiti-
    mate state end and will be set aside as violative of
    the Equal Protection Clause only if based on rea-
    sons totally unrelated to the pursuit of that goal.
    Legislatures are presumed to have acted constitu-
    tionally even if source materials normally resorted
    to for ascertaining their grounds for action are
Nos. 00-3981 & 00-4115                                        9

    otherwise silent, and their statutory classifications
    will be set aside only if no grounds can be conceived
    to justify them. See McGowan v. Maryland, 366
    U.S. 420 (1961); Kotch v. Board of River Port Pilot
    Commissioners, 330 U.S. 552 (1947); Lindsley v.
    Natural Carbonic Gas Co., 220 U.S. 61 (1911). With
    this much discretion, a legislature traditionally
    has been allowed to take reform “one step at a
    time, addressing itself to the phase of the problem
    which seems most acute to the legislative mind,”
    Williamson v. Lee Optical of Oklahoma, Inc., 348
    U.S. 483, 489 (1955); and a legislature need not run
    the risk of losing an entire remedial scheme sim-
    ply because it failed, through inadvertence or
    otherwise, to cover every evil that might conceiv-
    ably have been attacked. See Ozan Lumber Co. v.
    Union County National Bank, 207 U.S. 251 (1907).
394 U.S. at 809. Under this standard, a legislative deci-
sion “is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence
or empirical data.” FCC v. Beach Communications, Inc.,
508 U.S. 307, 315 (1993). See also, e.g., Nordlinger v. Hahn,
505 U.S. 1, 15 (1992); Minnesota v. Clover Leaf Creamery
Co., 449 U.S. 456, 463-65 (1981); Vance v. Bradley, 440 U.S.
at 111. “[R]ational-basis review in equal protection analy-
sis ‘is not a license for courts to judge the wisdom, fairness,
or logic of legislative choices.’ ” Heller v. Doe, 509 U.S. 312,
319 (1993) (citations omitted). See also, e.g., New Orleans
v. Dukes, 427 U.S. 297 (1976); Massachusetts Board of
Retirement v. Murgia, 427 U.S. 307 (1976); University of
Alabama v. Garrett, 531 U.S. at 366-67 (holding that
Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985), on
which the district court relied in this case, does not estab-
lish a sliding-scale approach).
10                                  Nos. 00-3981 & 00-4115

                             B
  Whether the line drawn in the PLRA between prisoners’
suits and free persons’ suits is rational may depend on
answering the question: “equal with respect to what”? The
district court compared §1997e(d) with §1988, which
entitles prevailing parties in constitutional cases to recover
reasonable attorneys’ fees. Section 1988 has been treated as
asymmetric—that is, prevailing plaintiffs recover their
legal expenses but prevailing defendants do not. See
Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978)
(defendants recover legal expenses only if the suit is
frivolous—in which event they would be entitled to re-
compense even without regard to a statute). A plaintiff
achieves “prevailing party” status by recovering any
judgment, even for nominal damages. Compare Farrar v.
Hobby, 506 U.S. 103 (1992), with Buckhannon Board &
Care Home, Inc. v. West Virginia Dep’t of Health & Human
Resources, 532 U.S. 598 (2001). Although fees must be
“reasonable”, so that de minimis or Pyrrhic victories do not
support fee-shifting, see Maul v. Constan, 23 F.3d 143, 145,
147 (7th Cir. 1994), the flexible reasonableness standard
permits a court to award legal fees that substantially
exceed the damages, see Riverside v. Rivera, 477 U.S. 561
(1986), even though no solvent private litigant in tort or
contract litigation would agree to pay counsel more than the
anticipated recovery (or the value of equitable relief). So
§1988 is exceptionally pro-plaintiff. The district judge asked
why, if medicine this strong is needed to promote consti-
tutional claims by free persons against state actors, prison-
ers do not need at least as much assistance.
  This approach assumes, however, that prisoners and free
persons have similar constitutional claims. As Johnson’s
case shows, that is not altogether true. Free persons are
not constitutionally entitled to liver transplants or other
costly medical care at public expense. States have ex-
tra obligations toward prisoners and must provide care
Nos. 00-3981 & 00-4115                                   11

appropriate to their serious medical needs because impris-
onment takes away their ability to fend for themselves. See
DeShaney v. Winnebago County Department of Social
Services, 489 U.S. 189 (1989). A complaint along the lines
of Johnson’s, if made by a free person, usually would
take the form of a contention that a physician committed
the tort of malpractice. And the prevailing party in tort
litigation must bear 100% of his own attorneys’ fees; that’s
the American Rule. See Alyeska Pipeline Service Co. v.
Wilderness Society, 421 U.S. 240 (1975). Now it is true
that a free person may recover for negligence, while a
prisoner must show intentional misconduct (where “deliber-
ate indifference” to his needs counts as intentional); the
free person therefore is more likely to prevail in any
given situation. But the free person still must cover his
own legal costs, even if he shows gross negligence or wilful
misconduct by the physician. Such proof may lead to
awards of punitive damages (as in Johnson’s case) but
will not require the defendant to reimburse the plaintiff
for the cost of legal representation. If we compare pris-
oners under §1997e(d) with free persons who received
bad medical care, perhaps the question should be why
prisoners receive legal services at defendants’ expense, and
free persons do not.
  Ordinary tort litigation is not the only option. Suppose
Johnson had been free and unable to pay for a liver trans-
plant. He might have requested medical care under
Medicaid—but if the responsible agency had delayed
making him eligible, there would not have been any op-
tion to litigate. The agency’s decision about applications
for individual benefits is the end of the line under the
Medicaid program. See Heckler v. Ringer, 466 U.S. 602
(1984). Such a free person is decidedly worse off than a
prisoner. Or consider how Johnson would have been
treated as a veteran seeking medical care in a Veterans
Administration hospital. A decision by the hospital’s staff
12                                  Nos. 00-3981 & 00-4115

deferring his eligibility for a liver transplant would have
been subject to review by an administrative tribunal but
not the Article III courts. Compare 38 U.S.C. §7252 with
38 U.S.C. §7292(d)(2). And, until recently, veterans were
prohibited from paying attorneys more than $10 out of
their own resources to seek a favorable result in the
administrative process. The Supreme Court held in Walters
v. National Ass’n of Radiation Survivors, 473 U.S. 305
(1985), that this cap was constitutional because Congress
was entitled to rely on the bar (and veterans’ organizations)
to donate free legal services. Once again prisoners are
decidedly better off under the PLRA.
  If a veteran suffers on account of substandard medical
care at a VA hospital, the legal remedy is under the Federal
Tort Claims Act. This statute forbids punitive damages. 28
U.S.C. §2674 ¶1. It caps attorneys’ fees at 25% of any
judgment (20% if the case is settled). 28 U.S.C. §2678.
Those legal fees are deducted from the plaintiff’s recovery;
the United States does not cover any part of a prevailing
plaintiff’s legal expenses. A prisoner can offer his lawyer
at defendant’s expense as much as 150% of the recovery
(plus a quarter of the recovery itself, and any additional
amount provided by contract), while a veteran can offer
counsel no more than 25% of a recovery that never in-
cludes punitive damages. Moreover, the plaintiff is forbid-
den to supplement these fees by private contract with his
lawyer. The Westfall Act, 28 U.S.C. §2679(d), makes this
remedy against the United States exclusive; any effort to
evade the cap by suing federal employees will be defeated
by replacing them with the United States as the sole de-
fendant. See generally Gutierrez de Martinez v. Lamagno,
515 U.S. 417 (1995). A litigant who can show that the
United States took in the litigation itself a position that
was not substantially justified may recover some attor-
neys’ fees under the Equal Access to Justice Act, 28 U.S.C.
§2412(d), but even the most egregious pre-litigation con-
Nos. 00-3981 & 00-4115                                   13

duct by federal agents or employees does not permit an
award of attorneys’ fees. Litigants who qualify for an award
under the EAJA encounter a statutory cap: “attorney fees
shall not be awarded in excess of $125 per hour unless the
court determines that an increase in the cost of living or
a special factor, such as the limited availability of quali-
fied attorneys for the proceedings involved, justifies a
higher fee” (§2412(d)(2)(A)(ii)). By contrast, the PLRA per-
mits the court to award fees up to $135 per hour, to be paid
by the defendant, without any need to prove that the
defendant’s conduct in the litigation was not “substantially
justified.”
  Counsel readily agree to represent veterans and other
injured persons in suits under the FTCA, even though these
suits are subject to caps more stringent than those con-
fronting prisoners under the PLRA. Congress rationally
could conclude in light of this experience that prisoners,
like veterans, will be able to enjoy the benefit of counsel,
when they have good claims (a vital qualifier).
   It is difficult to ascribe the caps in the PLRA to irra-
tional antipathy, when prisoners fare better under the
PLRA than do veterans and other free persons who must
bear their own legal expenses under the American Rule and
the FTCA. Caps on attorneys’ fees, far from being unique to
prisoners (as the district judge supposed), are common in
litigation against governments and their employees. For
example, persons claiming benefits under the Social
Security program must pay their own lawyers (unless the
EAJA applies because the government’s litigating position
was unreasonable); and it is unlawful for any claimant
to agree to pay counsel more than 25% of past-due bene-
fits as compensation for legal services rendered in ob-
taining those benefits. 42 U.S.C. §406(b) (discussed in
Gisbrecht, supra). School children and their parents,
seeking a better education under the Individuals with
Disabilities Education Act, may not recover more than
14                                  Nos. 00-3981 & 00-4115

$1,300 in attorneys’ fees (at rates of more than $50 per
hour) in suits within the District of Columbia. D.C. Code.
§11-2604. That limit (which has since been raised) was
sustained as rational, even though Congress allows
greater awards outside the District. See Calloway v.
District of Columbia, 216 F.3d 1, 4-5 (D.C. Cir. 2000). In
a world where veterans, employees who have paid em-
ployment taxes for a half century, and school children
must pay for their own lawyers, or accept reimbursement
at low rates, it is difficult to treat as irrational a statute
limiting to $135 per hour, or 150% of the recovery, the
amount of legal fees that courts may require defendants
to pay in prisoners’ cases.
  Prisoners may think of $135 per hour as munificent,
compared with the compensation of their lawyers in pre-
trial and trial proceedings. Solvent defendants must pay
all of their legal expenses and are not reimbursed if
they prevail. For insolvent defendants, the Criminal Jus-
tice Act, 18 U.S.C. §3006A, in conjunction with decisions
of the Judicial Conference, caps at $90 per hour how
much the public fisc will pay for counsel—yet criminal
defendants have a right to counsel far stronger than any
entitlement to fee-shifting in civil suits. See Gideon v.
Wainwright, 372 U.S. 335 (1963). The hourly cap under the
CJA combines with a per-case cap of $5,200 in a felony
prosecution. Although courts are authorized to approve
compensation exceeding $5,200 in exceptional cases, few
criminal trials are so exceptional that defense counsel take
home $36,000, the PLRA cap for Johnson. If this had been
a criminal prosecution, and Johnson had been a defen-
dant rather than the plaintiff, his lawyers would have
been paid considerably less than $36,000. If $5,200 is
enough to secure a competent criminal defense—and it
is—how can the PLRA cap of $36,000 be unconstitu-
tionally low for a civil plaintiff? The stakes of the crim-
inal prosecution for the defendant are considerably great-
er than the stakes in most post-imprisonment civil suits.
Nos. 00-3981 & 00-4115                                     15

  The kind of post-imprisonment litigation most important
to inmates is the collateral attack—on the conviction itself
or on decisions affecting good-time credits (and thus the
computation of the release date). Yet, when seeking re-
lease, a prisoner is entitled to no legal assistance at all.
If the prisoner obtains legal assistance and prevails, with
the court declaring that the incarceration was unconstitu-
tional from the outset, the state government will not be
required to pay a single penny of counsel’s fees. Courts
and defendants alike rely on—and receive—legal services
donated by the bar or supplied by legal assistance bureaus
(defender programs, legal aid clinics at law schools, pro-
grams underwritten by the Legal Services Corporation, or
programs funded by IOLTA proceeds, see Brown v. Legal
Foundation of Washington, 123 S. Ct. 1406 (2003)). Only
in capital cases does any federal statute provide for post-
conviction counsel, and even then the rate is capped at
$125 per hour, see 21 U.S.C. §848(q)(10)(A), or $10 less
than the current maximum under the PLRA.
  If asked why $0 for most collateral attacks and prosecu-
tions of solvent persons, $90 for criminal defense under
the CJA if the defendant is insolvent, $125 under the
EAJA and collateral attacks in capital cases, $135 under
the PLRA, and 25% of back benefits under the Social Se-
curity system, we might be unable to give a convincing
answer. Caps have an arbitrary quality; different majorities
in the legislature at different times have different willing-
ness to expend public funds (or write checks that must be
paid by state actors such as Dr. Daley, or the states them-
selves as indemnitors). Some of these caps depend on an
interaction between legislation and decisions of the Judicial
Conference, and these different bodies may have different
objectives. Some Congresses favor more litigation and
adjust fee schedules to promote it; other Congresses pay
more attention to the costs of adding cases to the docket (in-
cluding the costs to defendants and to the federal system
16                                   Nos. 00-3981 & 00-4115

when Congress is adopting rules for state actors) and
adjust rules to make litigation less attractive. There is no
one right answer to the question how much litigation
there should be, and who should pay for that litigation.
  We are conscious that the numbers we have given are
not directly comparable. Criminal defense counsel re-
ceives $90 per hour win or lose; a prisoner’s lawyer re-
ceives as much as $135 per hour, or a Social Security
claimant’s lawyer 25% of the back benefits, only in the
event of victory, as with a tort lawyer on contingent fee;
an award at $125 per hour under the EAJA depends on
both prevailing in the litigation and showing that the
government’s position was not substantially justified. So
the actuarial value of an hour devoted to the case by
criminal defense counsel may exceed the value of an hour
under the PLRA. But the value of an hour under the
PLRA exceeds that of an hour under the EAJA—and any
fee-shifting system offers more to counsel than does the
no-shifting approach on post-conviction challenges to the
fact of incarceration.
  The United States Code and its implementing rules
are the work of thousands of different actors over scores
of years; consistency is not possible. But what this means
is that all of these different systems could be thought
rational solutions to the question “how much may plaintiffs
be allowed to spend for legal services, how much of that
must be paid for by the losing side, and how much of the
cost of litigation will be covered by the public fisc?” Litiga-
tion produces benefits (and sometimes costs) for third
parties; it is to this extent a public good, and determining
how much of a public good to supply (and at whose cost)
is an intractable problem. The American Rule is a rational
approach; the British loser-pays rule is a rational approach;
asymmetric fee-shifting in §1988 is a rational approach;
asymmetric fee shifting plus compensation for the risk of
loss in order to induce counsel to be indifferent between
Nos. 00-3981 & 00-4115                                   17

paying clients and chancy constitutional claims would
be rational (and is used in common-fund cases, though
not under statutes such as §1988, see Burlington v. Dague,
505 U.S. 557 (1992)); and fee caps such as the FTCA, the
EAJA, and the PLRA also represent rational approaches.
The observation that prisoners receive less under the
PLRA than under §1988 no more shows that the PLRA
is irrational, than the fact that defendants pay more
under §1988 than under the PLRA (or the FTCA, or the
EAJA, or the American Rule) shows that §1988 is itself
irrational. These are simply different legislative solu-
tions to an enduring problem; in a democracy, each of
these options is open to the people’s representatives.


                            C
  Even if §1988 is the right benchmark for the question
“compared to what?”, the rational-basis standard permits
Congress to distinguish prisoners from free persons
when deciding how much the defendant must subsidize a
prevailing plaintiff. The PLRA draws many distinctions
between prisoners and other persons covered by civil rights
statutes. We held in Zehner that Congress rationally could
distinguish prisoners from free persons for the purpose
of suits seeking compensation for mental distress. We
held in Lewis that Congress rationally applied the three-
strikes rule to prisoners but not free persons. See also
Lucien v. DeTella, 141 F.3d 773 (7th Cir. 1998) (PLRA’s fee-
collection and prepayment system is constitutional). The
Supreme Court has twice interpreted and enforced the
PLRA’s rule, 42 U.S.C. §1997e(a), that prisoners (and only
prisoners) must exhaust administrative remedies be-
fore filing suit under 42 U.S.C. §1983. Porter v. Nussle,
534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).
Neither decision hints that there is anything prob-
lematic about treating prisoners differently. After we
18                                   Nos. 00-3981 & 00-4115

held unconstitutional the portion of the PLRA making
equitable relief harder to get (and harder to keep) in prison-
reform suits than in litigation about other institutions, see
French v. Duckworth, 178 F.3d 437 (7th Cir. 1999), the
Supreme Court reversed and held that the PLRA must be
applied as written. Miller v. French, 530 U.S. 327 (2000).
None of the Justices suggested that there is any constitu-
tional problem in distinguishing prisoners’ suits from free
persons’ suits. And in Martin v. Hadix, 527 U.S. 343 (1999),
the Supreme Court considered one issue about the scope
of §1997e(d) itself, again without any of its members
suggesting that the statute has a constitutional flaw.
  Congress could conclude that prisoners differ from free
persons in ways relevant to litigation. A rational legislature
would be entitled to believe the following:
     • Prisoners have time on their hands. Unlike free
       persons, who must skip work or shun family to
       visit a law library and draft legal documents,
       prisoners have ample leisure. Persons with low
       opportunity cost of time substitute their own
       efforts for purchased commodities, such as legal
       services, and demand more of those things (such
       as litigation) that can be had for the investment
       of time alone. As a result, prisoners file many
       more federal suits per person than do free per-
       sons. (Prisoners, who account for less than 1% of
       the population, file more than 20% of all civil
       actions in the federal courts. See Administrative
       Office of the U.S. Courts, Judicial Business of the
       United States Courts 2002 Table C-2. In the year
       preceding the PLRA’s enactment, prisoners filed
       federal suits about 35 times as frequently as
       noninmates. See Margo Schlanger, Inmate Litiga-
       tion, 116 Harv. L. Rev. 1555, 1575 (2003).)
     • Prisoners receive paper and postage; they have
       access to legal materials, see Bounds v. Smith,
Nos. 00-3981 & 00-4115                                       19

     430 U.S. 817 (1977); inmate writ-writers provide
     assistance that, for free persons, would be
     deemed the unauthorized practice of law. These
     materials and services make it easier for prison-
     ers to litigate.
   • Many prisoners have a burning desire to turn the
     tables on the guards and other prison personnel,
     discomfiting if not hurting or humiliating them.
     This non-economic incentive to litigate produces
     additional suits, which as grudge matches are
     particularly hard to resolve.
   • For some prisoners, litigation is recreation.
     Although most free persons shun litigation,
     because they have many better ways to amuse
     themselves, prisoners may see a trip to court as a
     vacation.
   • These and other circumstances, including defen-
     dants’ desire not to attract additional nuisance
     suits, make prisoners’ suits unusually hard to
     settle, so that they impose on the judicial system
     (and thus on other litigants) a burden dispropor-
     tionate to their numbers and intrinsic difficulty.
     (Professor Schlanger found that 6% of prisoners’
     civil suits are settled, compared with 28% of
     noninmates’ civil-rights litigation and 50% of
     ordinary tort litigation. 116 Harv. L. Rev. at
     1598. She also determined that the costs federal
     courts and prisons incur in handling prisoners’
     suits top $175 million annually, far exceeding
     prisoners’ damages recoveries. Id. at 1622-26.)
   • Prisoners are less honest than free persons and
     thus more likely to tell tall tales of victimization.
     The convictions that put them in prison establish
     their proclivity to violate the law when they see
     a personal advantage in doing so. (This is a prem-
20                                   Nos. 00-3981 & 00-4115

       ise of Fed. R. Evid. 609, which permits use of
       prior convictions to impeach the veracity of
       testimony.) The pot o’ gold at the end of litigation
       is a lure that induces dishonest claims.
     • At the same time, however, prisoners are less
       amenable to sanctions for making false claims.
       Many are destitute; none earns wages subject to
       garnishment. The threat of prosecution for per-
       jury holds little terror for a person already in
       prison, as a perjury sentence would be deferred
       until the expiration of existing terms; for those
       serving life sentences without prospect of parole,
       no further penal sanction is possible.
It is not our part to determine which of these things is
true; it is enough to say that a legislature could think
them true without taking leave of its senses. They make
it apt to ask why, if prisoners file so many suits even
though they receive legal assistance only 4% of the time,
they require (or deserve) a subsidy to provide more legal
assistance at defendants’ expense. The 4% figure for
prisoners who have counsel comes from the Bureau of
Justice Statistics and is reported in Roger A. Hanson &
Henry W.K. Daley, Challenging the Conditions of Prisons
and Jails: A Report on Section 1983 Litigation 21-22 (1995).
Some prisoners have counsel from the outset; others,
including Johnson, benefit from the district court’s assis-
tance in recruiting counsel. Even after the PLRA’s adop-
tion, about 4.4% of prisoners’ suits are prosecuted with
the benefit of counsel. See Schlanger, 116 Harv. L. Rev. at
1609. Many of these lawyers—who are not appointed or
otherwise conscripted but serve voluntarily, see Mallard
v. United States District Court, 490 U.S. 296 (1989)—are
willing to assist for slight compensation, but a legislature
rationally may think that the supply of lawyers prepared
to serve on judicial request is affected by the compensa-
tion available if the plaintiff prevails. See Stewart J.
Nos. 00-3981 & 00-4115                                    21

Schwab & Theodore Eisenberg, Explaining Constitutional
Tort Litigation: The Influence of the Attorney Fees Statute
and the Government as Defendant, 73 Cornell L. Rev. 719
(1988).
  As the district judge perceived matters, the respects in
which prisoners differ from free persons affect only friv-
olous and small stakes litigation. Prisoners file a super-
abundance of frivolous suits, the judge allowed, but none
of these ends in an award of attorneys’ fees under §1988
and so none is affected by §1997e(d). Prisoners also file
a profusion of small-stakes claims over $10 losses, such
as the hobby kit in Parratt v. Taylor, 451 U.S. 527 (1981),
that any free person would let slide by rather than pay
the $150 filing fee and devote costly time to litigation.
Professor Schlanger found that prisoners lose some 93%
of all civil suits they file. About 6% are settled: these
are the only numerically significant victories, as defendants
win 9/10 of the 3% of cases that make it to trial. 116 Harv.
L. Rev. at 1598. The median recovery when a prisoner
prevails at trial is $1,000. Id. at 1602-03. But the district
judge was sure that pestiferous suits could be deterred
by limiting attorneys’ fees to what is “reasonable” in light
of the ends in view (including deterrence of similar petty
misconduct by guards), without any need to curtail awards
of legal fees in more substantial litigation.
  Let us start with the second of these propositions—that
the reasonableness requirement in §1988, coupled with
decisions such as Farrar v. Hobby, supra, and, e.g., Cole
v. Wodziak, 169 F.3d 486 (7th Cir. 1999), and provisions in
the PLRA making it harder for prisoners to litigate with-
out paying the filing fee, suffice to discourage suits over
trivial harms (or at least to make prisoners no more likely
to file such suits than are free persons). This assumes
that Congress is entitled to use only one tool to achieve
a given objective. Why would that be? Legislatures often,
and legitimately, select multiple devices. A “reasonable-
22                                  Nos. 00-3981 & 00-4115

ness” requirement varies, like the length of the chancellor’s
foot, from judge to judge. Some are more generous than
others with defendants’ money, and the district judge’s
substantial discretion, see Hensley v. Eckerhart, 461 U.S.
424, 437-38 (1983), which implies deferential appellate
review of fee awards, ensures inconsistency. Congress
rationally could conclude—on the ground of equitable
treatment alone—that a quantitative rule (such as “fees
can’t exceed 150% of the judgment”) should supplement
a qualitative one (such as “fees can’t exceed what is rea-
sonable”).
  As for the contention that §1997e(d) does not affect
frivolous suits (because none is eligible for fees under
§1988): a legislature rationally may conclude that, because
prisoners litigate even frivolous claims to excess, they do
not need any extra incentive to litigate meritorious claims.
  The district court’s view that the PLRA does not affect
prisoners’ decisions depends on two assumptions, neither
of which it justified. The first (which the dissenting opin-
ion likewise indulges) is that each suit is known from the
outset to be either frivolous or meritorious. The second is
that no prisoner makes rational calculations of gains and
losses from suit. Yet Congress is not bound to use these
assumptions.
  Take the first: that a suit’s merit (or lack thereof) is
known to court and counsel. Why is this necessarily true?
Some suits entail legal uncertainty, others factual uncer-
tainty—and a legislature could conclude that prisoners’
proclivity for deceit makes it hard for outsiders to tell
which end is up. District judges have a hard time telling
the two apart: prisoners lose half of all cases in which
the judge deems the claim sufficiently meritorious to re-
cruit counsel, and others are settled for sums that may
reflect the defendants’ litigation costs rather than a high
probability that the prisoner would prevail. See Schwab &
Nos. 00-3981 & 00-4115                                     23

Eisenberg, supra, 73 Cornell L. Rev. at 773-74. If district
judges cannot reliably separate strong from weak claims,
neither can counsel; and if the suit’s strength is hard to
determine at the outset, then a law reducing fees in suc-
cessful suits also affects the filing of weak claims. An
example makes the point.
   Suppose a prisoner’s complaint alleges that a guard set
upon and beat him without provocation, and the prisoner
files an affidavit to that effect. The guard responds that
the supposed battery never occurred and adds that the
prisoner’s injury was inflicted by his cellmate in a gam-
bling dispute. Is this suit frivolous or meritorious? If the
prisoner is lying, it is frivolous; if the guard is lying, the
suit is meritorious. The judge cannot be sure who is tell-
ing the truth and is not authorized to resolve the case
short of trial. Nor could a lawyer representing the pris-
oner be sure who is honest; deceitful prisoners have no
reason to be candid with counsel and may be able to recruit
fellow inmates as witnesses (for other prisoners may
want to make life miserable for the guard, and like the
plaintiff are hard to sanction for perjury).
   Suppose that 9 out of 10 prisoners making such claims
are lying, while 1 of 10 guards is lying. (This assumption
tracks Professor Schlanger’s finding that prisoners lose
90% of suits that go to trial.) Suppose further that, if
the jury finds for the plaintiff, it will award $50,000 in
damages and, but for the PLRA, the judge would award
$150,000 in legal fees (if a lawyer takes the case). Finally,
suppose that with the assistance of counsel the plain-
tiff would prevail before a jury 20% of the time, while
unaided the plaintiff will win only 10% of these cases.
Before the PLRA’s enactment, this case on filing is worth
$10,000 (= $50,000 × 0.2) to the prisoner, who will win 20%
of the time with legal assistance (a form of regression to
the mean, since most errors will come from the 90% of
claims in which the prisoner is deceitful); the expected legal
24                                 Nos. 00-3981 & 00-4115

award is worth $30,000 to counsel ($150,000 × 0.2), which
induces counsel to assist; and the expected judgment from
the guard’s perspective is $40,000 (($50,000 + $150,000) ×
0.2). With the PLRA in force, the expected legal fee falls
to $15,000 (assuming that the 150% cap is the effective
limit), and counsel may be unwilling to take the case. Then
the prisoner’s expected recovery falls to $5,000 ($50,000 ×
0.1), and the guard’s anticipated judgment is the same (for
there will be no legal fees). If it turns out that $15,000 is
enough to recruit counsel, then the prisoner’s expected
recovery rises to $10,000 (just as before the PLRA), but
the guard’s outlay falls to $20,000—which, considering
the 90% chance that the prisoner is lying, still is too high
but is more appropriate than the pre-PLRA anticipated
loss of $40,000.
  By reducing the prisoner’s expected recovery from
$10,000 to $5,000 in this class of cases, the statute dis-
courages suits that are frivolous when viewed objec-
tively—or so Congress rationally could conclude. The
decision is made ex ante, and at this stage the PLRA has
a direct effect on counsel’s willingness to represent those
prisoners making frivolous claims. See Boivin, 225 F.3d
at 45. By reducing the defendant’s anticipated cost of li-
tigation from $40,000 to $20,000 for this set of claims
even when counsel takes the prisoner’s case, the PLRA
brings the outcome closer to the real loss entailed—or so,
again, Congress rationally could conclude.
  We come to the district court’s second assumption: that
prisoners just don’t think this way. The judge was cer-
tain that prisoners who are deluded, or determined to lie
in court, will do so no matter what, and that prisoners
determined to file frivolous suits are incorrigible. The
PLRA then will fail; prisoners won’t desist from filing in
the class of suits we have described (or any other). Yet
a legislature could believe that, even if the law has no
Nos. 00-3981 & 00-4115                                      25

effect on plaintiffs, its effect from defendants’ perspective
(reducing the fees that must be paid on top of damages) is
a public benefit. Moreover, a legislature rationally could
conclude that some prisoners will respond to the adjust-
ments. Marginal effects may differ from average effects.
Even if 80% of prisoners are insensible to changes in the
litigation process, different behavior by the other 20%
would be welcome. A reduction in prisoners’ suits by 20%
would reduce the total caseload of the federal courts by
about 5%. The actual reduction between 1995, the year
before the PLRA’s enactment, and 2001 is even greater. In
1995 prisoners filed 39,008 federal civil-rights suits, or 24.6
suits per 1,000 inmates. In 2001 they filed 22,206 such
suits, at a rate of 11.4 per 1,000 inmates. See Schlanger,
116 Harv. L. Rev. at 1583. While the number of prisoners
rose, the number of suits dropped dramatically. (Note that
this is a decline before application of two other changes
made by the PLRA: screening under 28 U.S.C. §1915A and
dismissals under §1997e(a) for failure to exhaust admini-
strative remedies.)
  That the PLRA has led prisoners to cut by half their
propensity to sue shows that they do respond to incen-
tives. Litigation is never free, even to a prisoner, if only
because it diverts time from exercise and watching tele-
vision. Congress rationally could believe that the size of
the expected recovery influences some prisoners’ decisions
about how to allocate their time. Although the amount
of the effect attributable to §1997e(d) is hard to calculate,
its direction is knowable. A rational legislature could
conclude that a small reduction in weak, trivial, or bogus
suits is worth achieving even at some potential cost to
prisoners’ ability to prevail in the less common meritorious
suit. See, e.g., National Paint & Coatings Ass’n v. Chicago,
45 F.3d 1124 (7th Cir. 1995) (discussing how the differ-
ence between marginal and inframarginal behavior af-
fects analysis under the rational-basis standard).
26                                 Nos. 00-3981 & 00-4115

                            D
  Even if all of this is wrong, Congress rationally could
suspect that fee awards under §1988 are excessive as a
rule, and that prisoners’ suits are an appropriate place to
explore the results of a cutback. The ability to take one
step at a time, to alter the rules for one subset (to see
what happens) without changing the rules for everyone,
is one of the most important legislative powers protected
by the rational-basis standard. And it would be entirely
rational to conclude that fees under §1988 are in need
of recalibration. Although a plurality of the Court in
Riverside rejected the contention that attorneys’ fees
must be proportional to damages, see 477 U.S. at 573-81
(opinion of Brennan, J., joined by Marshall, Blackmun &
Stevens, JJ.), four other Justices concluded that §1988 as
it stands should be understood to limit awards against
defendants to the amount that a solvent plaintiff would be
willing to pay his own lawyer, a sum generally less than the
prospective recovery. See 477 U.S. at 588-96 (Rehnquist, J.,
dissenting, joined by Burger, C.J., and White & O’Connor,
JJ.). Justice Powell, who wrote the dispositive opinion,
concluded that the award—about $245,000 in fees for legal
work that led to $33,350 in damages—was unjust to the
defendants (why should these defendants be made to pay
for legal services whose principal effect is to improve
deterrence with respect to other would-be violators?) but
could not be set aside given deferential appellate review
and statements in the legislative history implying that
some Members of Congress thought a hard cap unwar-
ranted.
  Members of Congress who agreed with Justice Powell
about fairness to defendants (or for that matter with
Justice Rehnquist about the appropriate rule for all civil-
rights cases) rationally could decide to alter the approach
of §1988 (as Justice Brennan interpreted it) for a subset
of all cases to which it applies. For reasons we have cov-
Nos. 00-3981 & 00-4115                                   27

ered, prisoners are a sensible subset with which to begin,
and §1997e(d) is a modest step. The district court’s award
requires Daley to pay more than 12 times the jury’s esti-
mate of actual damages; even with the PLRA cap in full
effect, Daley must pay about 8 times actual damages, which
is still a hefty multiplier. (A larger multiplier than the
double-damages approach that, according to State Farm
Mutual Automobile Insurance Co. v. Campbell, 123 S. Ct.
1513, 1526 (2003), may be the constitutional limit for
awards based on emotional distress.) Experience under
the PLRA may lead to more general modifications—or, if
too many good claims no longer can be vindicated, this
experience may lead Congress to lift or adjust the cap
for prisoners. The Constitution permits this sort of tin-
kering; it does not put the legislature to an all-or-none
choice at the outset, before data can be collected.
  The step-at-a-time corollary to the rational-basis stan-
dard tolerates the sort of inconsistency to which all sys-
tems of majority voting are prone. See Kenneth J. Arrow,
Social Choice and Individual Values (2d ed. 1963). Sup-
pose one-third of all legislators believe with Justice
Brennan that no limit should be applied to awards of
attorneys’ fees in any constitutional suit; that one-third
believe with Justice Rehnquist that awards in all constitu-
tional suits should be limited to the amount (almost al-
ways less than the damages) that a solvent private liti-
gant would be willing to pay for legal assistance; and that
one-third believe that the plaintiffs with the lowest oppor-
tunity costs of time (which is to say, prisoners) should
be required to substitute their own time for lawyers’ time
to some extent. Two-thirds of these legislators would
agree with the proposition: “Prisoners and free persons
should be treated alike with respect to recovering attor-
neys’ fees from defendants.” But though they would agree
with an equal-treatment rule, they would not agree on the
content of that rule. As a result, a proposal to reduce fees
28                                  Nos. 00-3981 & 00-4115

in suits by prisoners would carry by a two-thirds majority,
though a proposal to reduce fees across the board would
fail. If that form of inconsistency can be called “irrational”
and condemned as unconstitutional, then it is democracy
itself that the Constitution forbids—because, as Arrow
proved, inconsistency is an unavoidable consequence of
decision by majority rule. The rational-basis approach
tolerates this sort of legislative inconsistency by asking,
not what legislators (or judges) actually believe, but
whether it is possible for a sensible person to believe that
the law does something useful. People could, and many
do, believe that §1997e(d) does something useful.


                             E
  We have not yet mentioned two mainstays of Johnson’s
argument and the district court’s holding: Rinaldi v. Yeager,
384 U.S. 305 (1966), and Lindsey v. Normet, 405 U.S.
56 (1972). Neither case supports the conclusion that
§1997e(d) is invalid.
  Rinaldi dealt with a law requiring prisoners—but not
criminal defendants whose sentences had been suspended,
or those fined but not sentenced to prison—to repay the
cost of any transcripts prepared for use on direct appeal.
The state apparently failed to offer any defense of this
distinction (at least, the Justices did not discuss any
proffered justification), and the majority held it to be
irrational because inexplicable and unreasoned. Wisconsin
and the United States have defended the line drawn by
§1997e(d); as Part II.C demonstrates it is not an “unrea-
soned distinction” (384 U.S. at 310); and that is enough
to show that Rinaldi does not undermine the PLRA. But
there is more.
  Rinaldi is among a series of decisions in the 1950s
and 1960s that clear away what the Justices deemed to
be obstacles to appeals by indigent criminal suspects.
Nos. 00-3981 & 00-4115                                     29

See, e.g., Griffin v. Illinois, 351 U.S. 12 (1956); Douglas v.
California, 372 U.S. 353 (1963). These and other similar
decisions were revisited in Ross v. Moffitt, 417 U.S. 600
(1974), which concluded that Griffin and its successors
rest more comfortably on the due process clause—because
they determine what process states must afford to those
accused of crime—than on the equal protection clause. Ever
since Ross it has been understood that cases such as
Rinaldi protect only the rights of defendants. This means
principally criminal defendants, though occasionally the
principle has some application to defendants in civil
litigation of exceptional import, such as those that may
terminate parental rights concerning their children. See
M.L.B. v. S.L.J., 519 U.S. 102 (1996). Neither Rinaldi nor
any of the other cases in its sequence ever has been used to
hold that the defendant must subsidize plaintiffs’ civil
litigation. That is why we held in Lewis that Congress may
require civil plaintiffs to pay their own way.
  As for Lindsey: the Court held that, consistent with the
equal protection clause, a state may distinguish eviction
suits from other litigation about property and may re-
quire tenants to post bonds for the rent accruing pending
decision. 405 U.S. at 69-74. Indigent litigants unable to post
bonds for accrued rent may lose the litigation summarily,
the Court held, as far as the Constitution is concerned.
These aspects of Lindsey strongly support the kind of
distinctions drawn in the PLRA. The Court added in
Lindsey that requiring the tenant to post a bond (to be
forfeited in the event of affirmance) for double all accrued
and impending rentals is irrational; double-or-nothing is
a game of chance, not a mode of civilized litigation. Id. at
74-79. What Lindsey establishes is that forcing one par-
ty (in Lindsey, the tenant-defendant) to pay extra (double
rent) to the adversary as a condition of receiving a deci-
sion on the merits violates the Constitution. If that hold-
ing has any resonance here, it casts a shadow on §1988
30                                Nos. 00-3981 & 00-4115

itself, for, as a condition of receiving a decision on the
merits, Daley had to wager not only his own legal expenses
but also Johnson’s. We do not think that fee-shifting laws
are problematic; they have been sustained many times, see
In re Mann, 311 F.3d 788, 790 (7th Cir. 2002) (collecting
cases); but nothing in Lindsey implies that fee-shifting
ever is required.
  Unlike the double-or-nothing statute in Lindsey, the
PLRA  does not compel the defendant to pay extra (com-
pared with §1988) as a condition of receiving a decision on
the merits. The district court turned Lindsey on its head,
treating it as a requirement that one side subsidize the
other by enough to ensure that litigation occurs. Nothing
of the kind can be found in Lindsey (which, recall, held
that a single-bond requirement is valid even for impecu-
nious tenants) or in any other decision of which we are
aware. If the American Rule is constitutional, which it is,
there can be no doubt about the validity of the PLRA, which
does not impose a “litigation tax” on prisoners but simply
reduces the extent to which defendants must underwrite
prisoners’ suits.
  The judgment of the district court is reversed, and the
case is remanded for an award of attorneys’ fees that
complies with §1997e(d).
Nos. 00-3981 & 00-4115                                     31

  RIPPLE, Circuit Judge, concurring in the judgment. In
my view, this case requires a straightforward application
of the well-known and frequently applied rational basis test
of constitutional analysis. When a classification is subject
to this review, it is not appropriate for a court to second-
guess “the wisdom, fairness, or logic of legislative choices.”
FCC v. Beach Communications, Inc., 508 U.S. 307, 313
(1993). Only one issue is appropriately before us: Whether
Congress could have believed that the classification imple-
mented by the legislation had a rational relationship to
some legitimate government purpose. See id. In conduct-
ing this inquiry, the classification “is accorded a strong
presumption of validity,” Heller v. Doe, 509 U.S. 312, 319
(1993), and must be upheld so long as there is some
“reasonably conceivable state of facts that could provide a
rational basis for the classification,” Beach Communica-
tions, 508 U.S. at 313.
   When Congress enacted the classification in question
in this case, it had specific goals in mind: (1) to bring re-
lief to a federal civil justice system that, in its view, was
overburdened by meritless lawsuits brought by prisoners;
and (2) to protect the public treasury from unwise expendi-
tures. See 141 Cong. Rec. S14611-01, at S14626 (daily ed.
Sept. 29, 1995) (statement of Sen. Hatch) (“This landmark
legislation will help bring relief to a civil justice system
overburdened by frivolous prisoner lawsuits.”); 141 Cong.
Rec. S7498-01, at S7524 (daily ed. May 25, 1995) (statement
of Sen. Dole) (“[W]e have witnessed an alarming explosion
in the number of lawsuits filed by State and Federal
prisoners. . . . Frivolous lawsuits filed by prisoners tie up
the courts, waste valuable judicial and legal resources, and
affect the quality of justice enjoyed by the law-abiding
population.”); id. at S7526 (statement of Sen. Kyl) (“The
volume of prisoner litigation represents a large burden on
the judicial system, which is already overburdened by
increases in nonprisoner litigation.”); 141 Cong. Rec.
32                                  Nos. 00-3981 & 00-4115

S14312-03, at S14317 (daily ed. Sept. 26, 1995) (statement
of Sen. Abraham) (“[A]ttorney’s fees must be propor-
tionally related to the court ordered relief. No longer will
attorneys be allowed to charge massive amounts to the
State for the service of correcting minimal violations.”).
These are certainly legitimate government concerns, and
it is certainly not open to us to second-guess the con-
gressional judgment that there was a need to address
these problems. Congress had a sufficient basis for its
determination that the present state of civil litigation in
the federal courts required legislative intervention.
   Congress also had sufficient grounds for concluding that,
with respect to civil rights litigation, prisoners present
a unique situation that requires a particularized remedy.
See Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000); Madrid
v. Gomez, 190 F.3d 990, 996 (9th Cir. 1999). The hardships
of prison life, the prisoners’ lack of any control over the
conditions of their incarceration, the availability of a
great deal of free time, and the absence of the usual
economic disincentives in initiating legal action all combine
to affect the type of litigation brought by prisoners, the
frequency with which it is brought, and the manner in
which it is presented to the courts. Although other conclu-
sions reasonably might be drawn from the evidence,
Congress was entitled to conclude that these factors lead
prisoners to see high potential gains from bringing litiga-
tion and low opportunity costs associated with the ven-
ture. See Boivin, 225 F.3d at 44; Madrid, 190 F.3d at 996;
see also 141 Cong. Rec. S7498-01, at S7526 (daily ed. May
25, 1995) (statement of Sen. Kyl) (“Unlike other prospec-
tive litigants who seek poor person status, prisoners have
all the necessities of life supplied, including the materials
required to bring their lawsuits. For a prisoner who quali-
fies for poor person status, there is no cost to bring a
suit and, therefore, no incentive to limit suits to cases that
have some chance of success.”). Congress may well have
Nos. 00-3981 & 00-4115                                       33

been dead wrong in coming to that conclusion, but we
cannot say that the decision to view prisoners as present-
ing special problems requiring a special remedy was an
irrational one.
   Nor does the rational basis standard permit us to substi-
tute our judgment for the determination of Congress
with respect to the appropriate means to address the
identified problems. One manner in which Congress chose
to address the problem was by imposing restrictions on the
attorneys’ fees available for the successful prosecution of
§ 1983 litigation brought by a prisoner. This approach is
certainly not the only way of addressing the prisoner
litigation problem. Nor is it, in all probability, the best one.
It may well be correct that the restriction on attorneys’ fees,
while discouraging attorneys from bringing frivolous
cases, will hardly prevent the prisoners from bringing
the same suits without the assistance of counsel. It also
may turn out that the attorneys’ fees restriction does more
harm than good by discouraging attorneys from taking
meritorious cases and thereby reducing the effectiveness
of § 1983. Indeed, the restriction might increase the number
of meritorious cases brought by prisoners without the
assistance of counsel and therefore increase significantly
the judicial resources needed to unravel the issues.
  These concerns demonstrate the possibility that Con-
gress might have misjudged the effectiveness of the remedy
that it chose. That Congress may have made an unwise
choice of remedy does not establish, however, that Congress
acted irrationally. See Massachusetts Bd. of Retirement v.
Murgia, 427 U.S. 307, 316 (1976) (per curiam) (“[T]he
State perhaps has not chosen the best means to accom-
plish [its] purpose. But where rationality is the test, a
State ‘does not violate the Equal Protection Clause mere-
ly because the classifications made by its laws are imper-
fect.’ ” (quoting Dandridge v. Williams, 397 U.S. 471, 485
(1970))). Congress may well have thought that, if lawyers
34                                 Nos. 00-3981 & 00-4115

declined to take meritless lawsuits, prisoners, aware of
other provisions, including the “three strikes” provision of
the PLRA, would take the implicit advice in the attor-
ney’s decision and decide not to bring the cases on their
own. See Walker v. Bain, 257 F.3d 660, 669 (6th Cir. 2001);
Hadix v. Johnson, 230 F.3d 840, 845 (6th Cir. 2001).
Congress also might have believed that, in the past,
attorneys had brought a good number of meritless lawsuits
in the hope that, despite the frivolousness of the suit, a
recovery might be obtained. See Jackson v. State Bd. of
Pardons & Paroles, 331 F.3d 790, 798 (11th Cir. 2003);
Walker, 257 F.3d at 669; Hadix, 230 F.3d at 845. Congress
may well have been wrong in making such estimations;
at the very least, it may have overestimated the value of
the attorneys’ fees restriction as a remedy. But, in imple-
menting the rational basis test, we are not grading the
wisdom of the legislative branch. See Heller, 509 U.S. at
319; Beach Communications, 508 U.S. at 313. As long as
our legislators could have had a rational basis for their
action, we must allow their judgment to stand. We have no
right to demand that Congress achieve a perfect, or even a
near perfect, accommodation between means and ends. See
Heller, 509 U.S. at 321 (“[C]ourts are compelled under
rational-basis review to accept a legislature’s generaliza-
tions even when there is an imperfect fit between means
and ends.”). Indeed, Congress has the perfect right to
experiment. It can implement a “solution,” monitor its
effectiveness and later determine to change course in its
quest for a solution.
  On this basis, I join the judgment of the court.
Nos. 00-3981 & 00-4115                                     35

  ROVNER, Circuit Judge, with whom EVANS, DIANE P.
WOOD, and WILLIAMS, Circuit Judges, join, dissenting. In
concluding that this PLRA provision satisfies rational
relationship scrutiny, the majority as well as other courts
have held that Congress could rationally believe the
PLRA provisions furthered its interest in deterring frivo-
lous or trivial litigation. The journey from the PLRA fee
restrictions to the reduction in trivial or frivolous filings,
however, requires so many leaps, many ridiculous, as to
destroy any semblance of rationality. To believe that the
fee restriction impacts the filing decision of pro se pris-
oners, Congress would have to believe that (1) prisoners
would be inclined to bring frivolous or trivial lawsuits and
(2) those prisoners would not be deterred from filing
such suits by the likelihood that their own damages would
be minimal or non-existent but (3) those prisoners would
be deterred from filing those suits by the prospect that the
fees available to their as-then non-existent attorneys
were restricted under the PLRA even though (4) those
attorneys would not have been entitled to fees for such suits
even absent the PLRA and even though (5) the chances
of those prisoners ever obtaining counsel was practically
nil, given that only 1% of prisoner civil rights cases in-
volve private attorneys, and another 4% involve appointed
counsel (who presumably would not be appointed for our
hypothetical trivial/frivolous cases). See Roger A. Hanson
& Henry W.K. Daley, Challenging the Conditions of
Prison and Jails: A Report on Section 1983 Litigation 21-
22 (1995); see, e.g., McKeever v. Israel, 689 F.2d 1315, 1320
(7th Cir. 1982) (in determining whether to appoint counsel,
“the threshold question is whether the claim is of sufficient
merit”). Such a belief is fanciful, not rational. In the
alternative, to believe that the fee restriction impacts the
decision of private attorneys bringing suits on behalf of
such prisoners, Congress would have to believe that (1)
there are private attorneys who are willing to bring suits
on behalf of prisoners despite the difficult standards of
36                                  Nos. 00-3981 & 00-4115

proof and the absence of traditional damages such as lost
wages and future earnings and (2) those attorneys would
file a trivial or frivolous lawsuit even though fees for such
lawsuits are not available under § 1988 but (3) those same
attorneys would decide not to file the law suit once fees
were merely restricted under the PLRA. This sequence is
made even more ridiculous considering that only 1% of
all prisoner civil rights litigation involves private attor-
neys, including groups such as the ACLU, but yet we are
asked to believe that Congress rationally could think
those attorneys are choosing to bring the frivolous or
trivial lawsuits and would be deterred from that course
by the fee restriction under the PLRA but not the fee
prohibition under § 1988. If this connection is a rational
one, then this test truly has lost all meaning. The only
impact this provision will have is on the meritorious pris-
oner actions, rendering it even more difficult for prisoners
to adequately present these meritorious claims to the
courts, and more difficult for the court to find counsel
willing to accept appointments to represent prisoners in
such cases. The government does not purport to have a
legitimate interest in deterring prisoners from filing
meritorious suits, nor could it, and therefore the provision
is unconstitutional.
   Rather than apply traditional equal protection analysis
to the classification at issue here, as did all of the
other circuits to consider this claim, the plurality opinion
engages in a free-ranging discussion of myriad unrelated
statutes under the mantra of answering the question “equal
compared to what?” But the classification at issue here
is not a mystery—the singling out of prisoners from the
§ 1988 fee structure available to all other civil rights
litigants—and the sole issue in this case is whether that
classification is rationally related to a legitimate govern-
mental goal. Rather than addressing that question, the
plurality examines a host of unrelated policy issues in-
Nos. 00-3981 & 00-4115                                     37

cluding whether the fees available in civil rights actions
are too generous as compared with those available in
other causes of actions and whether prisoners are less
worthy of benefits than other groups. Those are interest-
ing issues for legislators or political candidates, but they
are mere detours here, irrelevant to the equal protection
claim before us. The plurality approach stands in stark
contrast to that of the other circuits to consider the issue,
which at least have engaged in a straightforward analy-
sis of the classification and applied traditional equal pro-
tection analysis to the issue. The plurality opinion travels
so far afield from equal protection jurisprudence in its
opinion that before we can examine the rationality of the
classification at issue here, we are compelled to clarify
what is not at issue in this case.


                              I.
  First, no one claims that the right of access to the courts
is a right of subsidized access. In demonstrating that
there is no constitutional right to attorney’s fees, the
plurality opinion lists a number of constitutional rights
for which there is no right of funding, but it is a point that
is undisputed and therefore the discussion is gratuitous.
This is not a case concerning whether prisoners, or any
other persons, have a constitutional right to attorney’s fees
in civil litigation. The only issue here is whether, in grant-
ing fees to prevailing plaintiffs in civil rights actions,
Congress may constitutionally single out one group of per-
sons for differing treatment, and all parties (as well as the
other circuits to consider the issue) agree that the rational
relationship test is the appropriate one for analyzing that
question.
  Second, this case is not a forum to analyze whether
attorney’s fees should be available in civil rights litigation
as a whole, whether such litigation is more important
38                                  Nos. 00-3981 & 00-4115

than other types of litigation, or whether prisoners as a
whole are a group less worthy of fees than “free persons.”
Although such a discussion in the current climate may
well foster a visceral reaction of outrage (why should
veterans have a lesser right to fees than prisoners!), it is
an illusory comparison unrelated to the equal protection
issue, and it foments the type of resentment towards a
disfavored group that the equal protection clause is de-
signed to address. It is difficult to understand why so
much of the plurality opinion is devoted to a comparison of
the fees available to prisoners in civil rights suits with the
fees available to persons in miscellaneous other causes
of actions. There is no constitutional requirement that
fees be equal across causes of actions, nor is there any
constitutional mandate that fees must be lower if a court
deems the cause of action “less important” or the litigants
“less worthy.” Such a wide-ranging approach to the equal
protection clause would transform courts into a “super-
legislature.” See Heller v. Doe by Doe, 509 U.S. 312, 319
(1993) (rational basis review in equal protection does not
“authorize ‘the judiciary [to] sit as a superlegislature to
judge the wisdom or desirability of legislative policy deter-
minations’ ”). We are not the proper body to determine
whether the spectrum of benefits afforded prisoners is more
than those given veterans, or whether prisoners or any
other group of persons are less deserving of benefits
than veterans and therefore should get less. The end result
of such an approach would be one that I suspect the
majority would not endorse. Should we compare benefits
afforded the elderly with those given to impoverished
children? What about those given to senior citizens regard-
less of income as opposed to those provided to the work-
ing poor, or to the unemployed? Are we to judge who is
more worthy? Of course not. The court ventures into that
dangerous territory in comparing the fees available to
prisoners with those provided under other statutes, a
Nos. 00-3981 & 00-4115                                    39

comparison that has no basis in equal protection juris-
prudence.
  Moreover, the comparison is an illusory one for another
reason. The PLRA applies to all civil rights actions by
prisoners. This particular case happens to address the
denial of appropriate medical care, which leads the plural-
ity into a comparison with other unrelated statutes relat-
ing to medical care—including medical malpractice tort
law, the FTCA, and Medicaid. But the case could have
just as easily involved an entirely different field of law.
Under the plurality’s approach, if the civil rights claim
concerned the conditions under which the prisoner was
forced to live, we would examine all habitability provisions,
or landlord-tenant laws. The logical extension of that
approach would be that the constitutionality of the PLRA
provision might well vary depending on the nature of
the underlying lawsuit. The equal protection clause re-
quires no such free-ranging examination of the fairness or
wisdom of a provision in light of analogous but unrelated
statutes. In fact, after raising the false comparisons, the
plurality explicitly recognizes that the numbers upon
which it bases much of its argument are “not directly
comparable.” Op. at 16.
  The plurality in the end does not appear to be question-
ing the availability of attorney’s fees to prisoners as
much as the allowance of prisoner suits under § 1983 at all.
Much of its analysis challenges why prisoners are al-
lowed to litigate at all for deliberate indifference to their
serious medical needs, comparing prisoners’ litigation
options to those of veterans and medicaid recipients
among others. But that is not the subject of the PLRA
provisions before us. We are concerned here only with the
restriction on attorney’s fees under the PLRA, not the
wisdom of the varying litigation options among statutes,
and therefore this discussion has no place in an equal
protection analysis of the PLRA provision at issue here.
40                                   Nos. 00-3981 & 00-4115

   As we stated, the question “equal compared to what” is
not answered by comparing prisoners in civil rights ac-
tions to litigants in unrelated causes of actions. For nearly
all of those unrelated causes of action (i.e. malpractice
tort law, the FTCA, etc.), all claimants filing suit under
those actions are treated identically. Although there may
be variations in the availability of fees among differ-
ent causes of actions, there is no such discrepancy within
a cause of action, with the exception of the IDEA which
we will discuss shortly. The PLRA, however, creates just
such a classification within a cause of action. Section 1988
grants attorney’s fees to prevailing plaintiffs in civil rights
litigation. The PLRA specifically targets those litigants,
and creates a sub-group (prisoners) that will not have
the same access to fees, stating that “[i]n any action
brought by a prisoner . . . in which attorney’s fees are
authorized under section 1988 [footnote omitted] of this
title, such fees shall not be awarded except that . . . .” It is
that classification between classes of individuals under
§ 1988 that must pass equal protection scrutiny.
   An example may illustrate the fallacy of the plurality’s
approach. Suppose instead of limiting fees for prisoners, the
PLRA reduced the availability of fees under § 1988 for all
blue-eyed litigants. Under the plurality’s reasoning, there
would be no equal protection problem with that statute.
The same arguments used to justify the restriction for
prisoners would apply to blue-eyed litigants: blue-eyed
civil rights litigants would still be “decidedly better off”
under those fee restrictions than veterans under the
FTCA or persons claiming benefits under the Social Secu-
rity program; litigants in those other causes of action
manage to obtain attorney representation so there is no
reason to believe that equal fees are necessary for the blue-
eyed civil rights litigants to do the same; civil rights
litigation is not nearly as important as collateral attacks
on a conviction, and there are less fees available there;
Nos. 00-3981 & 00-4115                                    41

there is no constitutional right to attorney’s fees; and
finally, other statutes have widely divergent fee structures,
and “what this means is that all of these different systems
could be thought rational solutions.” Yet most rational
people would balk at the suggestion that Congress could,
consistent with equal protection, single out persons with
a certain eye color and deny them the same attorney’s
fees as all other litigants pursuing the same constitutional
claims. That is because the detour into other causes of
actions ignores the proper focus, which is on the classifica-
tion itself viewed in the context of the statute authoriz-
ing fees for that particular cause of action. The classifica-
tion must be rationally related to the legitimate govern-
mental goal. That analysis is not even addressed until
well into the plurality opinion, but it is the only relevant
one for purposes of equal protection. The plurality’s po-
lemic may have (intuitive) appeal only because it exploits
our own preconceptions about prisoners as a class and
their worthiness—in other words, because it highlights
why they are a disfavored group. But that tendency to
act arbitrarily against a disfavored group is precisely the
reason why the equal protection clause is necessary.
  Only one of the examples offered by the plurality, that
of the District of Columbia claimants under the IDEA,
actually addresses a sub-group of litigants who were
singled out for reduced fees as compared to others assert-
ing the same cause of action. The D.C. Circuit in Calloway
upheld that disparity only after determining that the
classification was rationally related to the legitimate
goal of addressing an acute funding need in the District.
216 F.3d 1. Notably, the court did not uphold the classifi-
cation under the theory proposed by the majority that
all fee structures vary and therefore all could be consid-
ered rational, nor did it uphold it because the fees that
remained available were better than those afforded other
groups such as veterans. Indeed, Calloway provides no
42                                  Nos. 00-3981 & 00-4115

support for the theories presented in this majority opinion.
A glance at Calloway is revealing in its contrast to the
present case.
   Calloway considered the constitutionality of a provi-
sion that limited the fees that the District of Columbia
could pay to attorneys for prevailing parties in IDEA
lawsuits. The reason for singling out District of Columbia
litigants from all other IDEA litigants was clear from the
record, which demonstrated that in one year alone, “al-
though the DCPS [District of Columbia Public Schools]
served less than two-thousandths of one percent of the
nation’s disabled students, over forty-five percent of
requests for due process hearings nationwide were made
in D.C.” Id. at 4. Because attorney’s fees were available
under the IDEA, legal representation in D.C. had grown
from an obscure niche into a booming, lucrative industry,
costing the DCPS over $10 million in attorney’s fees in
fiscal year 1998. Id. The Secretary of Education had
determined that immediate compliance by the DCPS with
the requirements of the IDEA was not feasible because
the root causes of its failures were so extensive; the Secre-
tary had thus entered into a compliance agreement with
DCPS mandating full compliance within three years. Id.
Against this unusual background, Congress acted to re-
duce the amount of attorney’s fees available for IDEA
actions in D.C. The D.C. Circuit considered whether the
classification at issue there—the singling out of D.C.
litigants from other IDEA litigants—was rationally re-
lated to a legitimate governmental goal. The government
argued that “in view of DCPS’s manifest inability to meet
its obligations under IDEA, Congress could rationally have
concluded that ‘it was more important for the District to
spend its funds on remedying those systemic defects
and providing primary services rather than upon litigation
fees.’ ” Id. at 8. The D.C. Circuit held that Congress could
rationally believe that limiting payments to attorneys
Nos. 00-3981 & 00-4115                                     43

would leave more funds available for direct services, and
that assisting disabled children by allocating funds to-
wards primary educational services rather than attor-
ney’s fees was a legitimate governmental goal. Id. at 8-9.
Accordingly, the provision survived equal protection
scrutiny.
   The plurality opinion establishes no similar connection
between reduced attorney’s fees in prisoner civil rights
litigation and any legitimate governmental goal. Unlike
Calloway, there is no booming, lucrative business in the
prisoner segment of civil rights litigation. With only 1% of
all prisoner civil rights cases even involving attorneys not
appointed by the court, that can not possibly be iden-
tified as a fee drain out of proportion to the other litigants
under the civil rights statutes. It is that connection be-
tween attorney’s fees and a legitimate governmental goal
that the plurality never makes, choosing instead to devote
much of the opinion to a condemnation of prisoner civil
rights litigation generally (without regard to attorney rep-
resentation or fees) or decrying the extent of fees available
in civil rights actions generally as compared with other
causes of actions that the majority appears to deem more
significant. The Equal Protection Clause, however, ad-
dresses the fit between the particular classification and
the legitimate governmental goal, and that is lacking here.
  In a late effort to tie its discussion to traditional equal
protection analysis, the plurality declares that the other
statutes with lesser attorney’s fees are relevant compari-
sons because litigants under those statutes do not have
difficulties obtaining counsel, and therefore Congress could
assume that prisoners under a more favorable statutory
structure would not either. That comparison is so superfi-
cial as to be meaningless. First, as has been mentioned, the
focus on medical cases is misplaced, because the PLRA
limits fees in all types of prisoner civil rights actions.
Moreover, damages cannot be compared with any meaning
44                                Nos. 00-3981 & 00-4115

in prisoner versus non-prisoner litigation, because the
absence of earning capacity in the former necessarily skews
the damages. This case is a good example of the discrep-
ancy. Diagnosed with end stage liver disease, Johnson
lapsed into a coma multiple times. In February 1996, he
was examined by Dr. Alexandru Musat, medical director
of the Liver Transplantation Program at the University
of Wisconsin Hospital, who recommended that Johnson
should be evaluated to determine whether he was an
appropriate candidate for a liver transplant, as “the only
viable option for resolution of his symptoms and liver
failure.” Without a liver transplant, Dr. Musat estimated
that Johnson’s life expectancy would be in the range of
three to four years.
  The defendant Dr. George Daley, the medical director of
the Bureau of Correctional Health Services for the Wiscon-
sin Department of Corrections, refused to authorize that
evaluation. On a number of subsequent occasions, Dr. Daley
denied written requests from two prison doctors seeking
authorization for the treatment recommended by Dr.
Musat. Johnson then filed suit pursuant to 42 U.S.C. § 1983
alleging that Dr. Daley denied him adequate medical care
for his liver disease in violation of the Eighth Amendment.
In July 1998, the district court dismissed that action
without prejudice for failure to exhaust administrative
remedies, but the complaint was reinstated in December
1998, after Johnson satisfied the exhaustion requirement.
In April 1999, Dr. Daley finally approved the request to
have Johnson evaluated by the University of Wisconsin for
a liver transplant, and in June 1999, the University of
Wisconsin Hospital, with the approval of Dr. Daley, placed
Johnson’s name on the list as a potential recipient for a
donated liver. The case proceeded to trial on the issues of
whether the initial denials of the evaluation constituted
deliberate indifference to Johnson’s serious medical needs
and whether the three-year delay in evaluation and place-
ment on the transplant list caused him any harm.
Nos. 00-3981 & 00-4115                                   45

   Despite the length of the delay and the clear risk to
Johnson’s life, recognized even by the prison doctors,
Johnson was awarded only $10,000 in compensatory dam-
ages and $30,000 in punitive damages, amounts that
undoubtedly would have been much higher were he not
a prisoner. Even the plurality opinion reflects the deval-
uation of a prisoner’s life, stating dismissively that “he
appears to have suffered no long-term injury from
the delay,” but that “[n]onetheless, a jury agreed with
Johnson . . . and awarded him . . . damages.” I doubt that
the plurality would be so cavalier about a three-year
delay in being placed on a transplant list if it were they
or a loved one awaiting a life-saving procedure, and the
plurality opinion fails to mention that but for the law-
suit, Johnson would probably still not be on the transplant
list.
  The reality is that both the deep-seated societal antip-
athy towards prisoners as a class as well as the absence
of lost wages or future earnings damages ensures that
damages in prisoner cases will nearly always be minimal.
See Roger A. Hanson & Henry W.K. Daley, Challenging
the Conditions of Prison and Jails: A Report on Section
1983 Litigation 37 (1995) (recognizing that prisoner settle-
ments and verdicts are smaller because wages are non-
existent and a substantial component of compensatory
damages is either lost wages or foregone earnings). More
fundamentally, the comparison with the other statutes is
flawed in its extrapolation of the experience under other
statutes to this context. The plurality concludes that if
attorneys are widely available under statutes with less
liberal fee provisions, Congress could conclude they
would be widely available under the PLRA. But even pre-
PLRA, attorneys were rarely available to prisoners. Prison-
ers are represented by attorneys in only 4% of all prison-
er litigation, and the vast majority of those attorneys
are court appointed. Because attorneys were scarce in
46                                   Nos. 00-3981 & 00-4115

prisoner civil rights litigation even before the PLRA
reduced the fees, the comparison to other statutes is
meaningless.
  The plurality opinion raises a host of other question-
able arguments, not the least of which is that all pris-
oners are liars and all of their cases lost are lost because
they lied. It is difficult to imagine any other group of
persons for whom such sweeping (and unsupported) gener-
alizations would be tolerated, let alone given credence, in
a judicial opinion. Nevertheless, the generalizations do not
further the plurality’s argument. In fact, many of those
alleged prisoner traits posited by the plurality would
demonstrate that their filing decisions are entirely unaf-
fected by attorney’s fees. There is, for instance, no reason to
believe that prisoners motivated to file lawsuits to get a
day away from prison, to pass the time, or to harass pris-
on staff, will be moved to abstain from such conduct by
the prospect that their hypothetical future attorney will
receive less in fees if the suit is successful. But that is
precisely the basis of the rationality analysis offered by
the plurality. The plurality further uses these preconcep-
tions about character to engage in an even more fanciful
calculation of the hypothetical effects of the PLRA on
prisoner behavior. For instance, assuming all prisoners are
liars, the plurality postulates that a frivolous case often
will not be recognized as such until the trial, but that
ignores the reality that the vast majority of prisoner cases
are resolved without an evidentiary hearing. See Roger A.
Hanson & Henry W.K. Daley, Challenging the Condi-
tions of Prison and Jails: A Report on Section 1983 Litiga-
tion 22 (1995) (noting that evidentiary hearings are not
held in 97% of cases). The calculations are in large part
based on unsupported assumptions and unrecognized fac-
tors. For instance, from the statistic that prisoners lose
90% of all fully tried cases, the majority then assumes that
9 out of 10 prisoners making claims are lying, and only 1
Nos. 00-3981 & 00-4115                                     47

out of 10 guards is lying. That is unsupportable. Only 3%
of cases reach evidentiary hearings or trials. Id. In the
97% that do not, courts assume the prisoners are truth-
ful in their allegations but find that prisoners none-
theless lack the support necessary to satisfy the rela-
tively demanding prerequisites to relief (i.e., in medical
cases, prisoners need to demonstrate not mere malprac-
tice, but deliberate indifference to a serious medical need).
For the overwhelming majority of cases, then, there is no
basis to assume that the case is lost because the prisoner
is lying. Likewise, of the cases that go to trial, there is
no reason to believe that the lack of success establishes
that the prisoner was lying as opposed to the possibility
that the prisoner lacked the corroboration to support a
claim or simply could not meet the high burden, but in
any case 90% of 3% is only 2.7%. All of the expected recov-
ery calculations flow from that false assumption.
  The potential reduction in litigation that the majority
portends as a result of these PLRA provisions is sim-
ilarly baseless. For instance, the majority concludes that
the PLRA fee restrictions will reduce the percentage of
prisoners filing cases, but does not consider whether that
decrease, by making it less risky for guards to engage in
unconstitutional behavior, will increase such behavior
and therefore offset some of that alleged “gain.” In any case,
the calculations are far removed from the issue here
and the reality of filing decisions in the prison context.
Furthermore, the majority declares that “even if 80% of
prisoners are insensible to changes in the litigation pro-
cess, different behavior by the other 20% would be wel-
come.” Given that only 4% of prisoners will ever be repre-
sented by counsel, the 20% prediction is baseless. When
we further consider that the vast majority of those 4%
involve appointed counsel and therefore are cases that
the court does not consider trivial, it becomes clear that
the cases potentially deterred are not the trivial ones in
48                                   Nos. 00-3981 & 00-4115

which the government claims an interest, but the meritori-
ous ones in which it does not. McKeever, 689 F.2d at 1320
(in determining whether to appoint counsel, “the threshold
question is whether the claim is of sufficient merit”). No
amount of statistical shell games can rationally establish
otherwise.
  We turn, then, to the only issue presented here—the
connection between the classification and the legitimate
governmental interest. A proper application of the rational
relationship test renders the PLRA fee restrictions uncon-
stitutional.


                              II.
   We begin our analysis with a brief explanation of the
genesis of the PLRA provisions. The PLRA was enacted in
response to a veritable flood of prisoner litigation, most of
it without merit, that clogged up the dockets of federal
courts and drained resources away from meritorious cases.
The magnitude of the problem was apparent. See, e.g.,
Roller v. Gunn, 107 F.3d 227, 230 (4th Cir. 1997) (“In 1995,
prisoners brought over 25% of the civil cases filed in the
federal courts. In this circuit alone, in forma pauperis
(IFP) filings accounted for almost half of the court’s 1995
caseload and prisoners were responsible for 75% of those
filings.”) (citations omitted); Boivin v. Black, 225 F.3d 36, 41
(1st Cir. 2000). In addressing this problem, Congress
recognized that the unique circumstances of prison life
provided a breeding ground for frivolous litigation. Inmates
have a great deal of time on their hands, and no disin-
centive to spend it filing suits. Although a court appear-
ance is a nuisance and often a real hardship on a non-
incarcerated person, who must arrange for time off from
work or child care, the inmate has no such concerns. To
the contrary, a trip to the courtroom is a benefit for an
inmate who is otherwise confined to a cell. In addition, the
Nos. 00-3981 & 00-4115                                      49

availability of IFP status, as well as the provision of all the
inmate’s daily needs in prison, removed any financial
impediment to litigation. As a result, the type of cost-
benefit assessment in which a non-prisoner might en-
gage, to determine whether the constitutional issue was
worth the effort and cost of pursuing federal court relief,
was artificially skewed in the context of the prison suits.
See Hadix v. M. Johnson, 230 F.3d 840, 844 (6th Cir.
2000); Boivin, 225 F.3d at 44; Tucker v. G. Branker, 142
F.3d 1294, 1300 (D.C. Cir. 1998); Mitchell v. Farcass, 112
F.3d 1483, 1488-89 (11th Cir. 1997); Roller, 107 F.3d at 234.
Congress responded to that problem by enacting the
PLRA in an attempt to redress the epidemic of frivolous
prisoner litigation.
  We have already upheld a number of PLRA provisions
as constitutional. See, e.g., Lewis v. Sullivan, 279 F.3d 526
(7th Cir. 2002) (holding constitutional PLRA requirement
that prisoners prepay filing fees if they have a history of
frivolous litigation except where under imminent danger of
serious physical injury); Zehner v. Trigg, 133 F.3d 459 (7th
Cir. 1997) (holding constitutional PLRA limitation that
forbids recovery for mental or emotional damages without
a prior showing of physical injury). Although we have
upheld those provisions against equal protection chal-
lenges, each PLRA provision must be examined on its own
merits.
  We are concerned in this case only with §§ 1997e(d)(2) &
(3), which provide that in cases brought by an inmate in
which fees are authorized under § 1988, the award of
attorney’s fees is limited to 150% of the amount of judg-
ment, § 1997e(d)(2), and the hourly rate payable to a
prisoner’s attorney is restricted to 150% of the hourly
rate allowed for court-appointed counsel in criminal cases
under the Criminal Justice Act (18 U.S.C. § 3006A),
§ 1997e(d)(3) (collectively referred to as “the PLRA fee
restrictions”).
50                                  Nos. 00-3981 & 00-4115

  Because those PLRA fee restrictions apply only to cases
in which fees are authorized under § 1988, in order to
assess the equal protection challenge we first must
place those provisions in the context of the fees otherwise
available under § 1988. See § 1997e(d); Martin v. Hadix,
527 U.S. 343, 363-64 (1999) (Scalia, J., dissenting) (“[i]n
reality . . . the PLRA simply revises the fees provided for
by § 1988, and it seems that the underlying purpose of
that provision must govern its amendment as well—which
purpose was to provide an appropriate incentive for law-
yers to work on (among other civil rights cases) prisoner
suits.”); Heller v. Doe by Doe, 509 U.S. 312, 321 (1993)
(“even the standard of rationality as we so often have
defined it must find some footing in the realities of the
subject addressed by the legislation”). See also Romer v.
Evans, 517 U.S. 620 (1996) (analyzing amendment in light
of pre-existing law to determine that rational relationship
test was violated); Lindsey v. Normet, 405 U.S. 56, 78 (1972)
(analyzing the statutory double-bond requirement in
the context of the pre-existing state statutes); Reitman
v. Mulkey, 387 U.S. 369, 373 (1967) (in equal protection
challenge to state constitutional provision, court should
consider its “’immediate objective,’ its ‘ultimate effect’
and its ‘historical context and the conditions existing
prior to its enactment.’ ”). In enacting § 1988, Congress
recognized that civil rights actions for damages are dis-
tinct from private tort suits that benefit only the individ-
ual plaintiffs. Unlike ordinary tort litigation, civil rights
suits “vindicate important civil and constitutional rights
that cannot be valued solely in monetary terms.” City of
Riverside v. Rivera, 477 U.S. 561, 574 (1986). Congress
determined that many victims of civil rights violation
were unable to obtain representation in the private
market because of high attorney fees, and therefore § 1988
provides for payment of a reasonable fee—that is, “a fee
large enough to induce competent counsel to handle the
Nos. 00-3981 & 00-4115                                     51

plaintiff’s case, but no larger.” Simpson v. Sheahan, 104
F.3d 998, 1002 (7th Cir. 1997).
   Consistent with that purpose, § 1988 allows for the
award of fees only to “prevailing parties.” In order to be
considered a prevailing party, the plaintiff must have
obtained some judicially sanctioned relief on the merits
of the claim. Specifically, a plaintiff prevails when actual
relief on the merits of the claim, provided by a court
judgment or consent decree, materially alters the legal
relationship between the parties by modifying the defen-
dant’s behavior in a way that directly benefits the plain-
tiff. Buckhannon Bd. and Care Home, Inc. v. West Vir-
ginia Dept. of Health and Human Resources, 532 U.S.
598, 604 (2001); Farrar v. Hobby, 506 U.S. 103, 111-112
(1992); Simpson, 104 F.3d at 1001. Once that hurdle is
surmounted, a court may award fees but only in an amount
that is reasonable in light of the degree of overall success.
Farrar, 506 U.S. at 114. Where a plaintiff is a prevailing
party but the success is merely technical or de minimis,
the presumption is that no fees should be awarded. See
id. at 115 (where the plaintiff recovers only nominal
damages “the only reasonable fee is usually no fee at all”);
Cole v. Wodziak, 169 F.3d 486, 488 (7th Cir. 1999) (“a paltry
jury award . . . implies that the only reasonable fee is
zero”); Monticello School Dist. No. 25 v. George L. on Behalf
of Brock L., 102 F.3d 895, 907 (7th Cir. 1996) (“when a
plaintiff’s success is simply technical or de minimis, no
fees may be awarded, even if the plaintiff has succeeded
on an issue in the litigation and may thus be technically
a ‘prevailing party’ ”); Maul v. Constan, 23 F.3d 143, 145
& 147 (7th Cir. 1994) (award of attorney’s fees is inappropri-
ate where victory is de minimis).
  The ultimate question in entitlement to fees under
§ 1988, therefore, is whether the plaintiff’s victory is
significant or merely de minimis. Maul, 23 F.3d at 145. In
recognition that “[n]ominal relief does not necessarily a
52                                 Nos. 00-3981 & 00-4115

nominal victory make,” Farrar, 506 U.S. at 121 (O’Connor,
J. concurring), courts may award fees in cases of minimal
damages only if other factors establish that the victory,
although monetarily small, is actually a significant one.
In making that assessment, we look to the three factors
set forth in Justice O’Connor’s concurrence in Farrar: “(1)
the difference between the judgment recovered and the
recovery sought; (2) the significance of the legal issue on
which the plaintiff prevailed; and (3) the public purpose
of the litigation.” Farrar, 506 U.S. at 122; Simpson, 104
F.3d at 1001; Briggs v. Marshall, 93 F.3d 355, 361 (7th Cir.
1996). Where those factors establish that the victory is
not de minimis but is instead significant, fees may be
available under § 1988. If those factors are not met, then
the plaintiff achieved only a technical or de minimis vic-
tory and fees are unavailable under § 1988. Of course, if
a case is frivolous, no fees can be awarded under § 1988,
and in fact plaintiff and plaintiff’s counsel can be sanc-
tioned for the pursuit of such a suit. Farrar, 506 U.S.
at 111-12.


                            III.
  With that background, I turn to the constitutionality of
the PLRA fee restrictions. The parties agree that the
appropriate level of review is the rational relationship
test because the challenged provisions do not impact
fundamental rights and the prisoners do not constitute
a suspect class which would have triggered a higher de-
gree of scrutiny. The issue, therefore, is whether those
PLRA fee restrictions are rationally related to a legiti-
mate governmental interest. Although the district courts
have diverged on the issue, the federal appellate courts
that have considered the rationality of the PLRA fee
restrictions have upheld them or split on the question. The
Third Circuit sitting en banc split evenly on the issue,
Nos. 00-3981 & 00-4115                                  53

which had the effect of upholding the provisions as con-
stitutional because the district court had so held. Collins
v. Montgomery County Bd. Of Prison Inspectors, 176
F.3d 679, 686 (3d Cir. 1999). The First, Sixth, Eighth,
Ninth, and Eleventh Circuits held the provisions constitu-
tional. Boivin v. Black, 225 F.3d 36 (1st Cir. 2000); Hadix
v. Johnson, 230 F.3d 840 (6th Cir. 2000) and Walker v.
Bain, 257 F.3d 660 (6th Cir. 2001); Foulk v. Charrier, 262
F.3d 687 (8th Cir. 2001); Madrid v. Gomez, 190 F.3d 990
(9th Cir. 1999); Jackson v. State Board of Pardons and
Paroles, 331 F.3d 790 (11th Cir. 2003). Those opinions
are deserving of careful attention. Nevertheless, the split
in the Third Circuit en banc and the dissents in the Sixth
Circuit cases caution against a rush to judgment, and
Apprendi v. New Jersey, 530 U.S. 466 (2000), and McNally
v. United States, 483 U.S. 350 (1987), both of which over-
ruled nearly uniform lower court precedent, certainly
illustrate that strength of numbers does not always sig-
nify an analysis convincing to the Supreme Court. See
Buckhannon, 532 U.S. at 621 (noting that “our disagree-
ing with a ‘clear majority’ of the Circuits is not at all a
rare phenomenon. Indeed, our opinions sometimes con-
tradict the unanimous and long-standing interpretation
of lower federal courts.”).
  We begin with the interests that animate the PLRA fee
restrictions. The government and Dr. Daley propose five
possible governmental interests furthered by the fee
provisions, which mirror the interests asserted in the
other circuit cases. It does not matter whether Congress
had those interests in mind when enacting the PLRA
fee restrictions, or whether they are mere conjecture,
because Johnson must negate every conceivable basis
which might support the legislation whether or not the
basis has any foundation in the record. Heller, 509 U.S.
at 320. The PLRA fee restrictions purportedly are related
to the government’s interest in: (1) deterring the filing
54                                  Nos. 00-3981 & 00-4115

of frivolous claims; (2) regulating the filing of suits predi-
cated on trivial harms; (3) protecting the public fisc; (4)
regulating federal court intervention into States’ manage-
ment of their prison systems; and (5) preventing wind-
fall fee awards. We will consider these in turn.
  Two of the circuits as well as the concurrence here uphold
the fee restrictions based solely on the governmental
interest in deterring frivolous litigation. In the Ninth
Circuit case of Madrid, the inmates acknowledged that
the government had a legitimate interest in deterring
frivolous filings, but maintained that it was not rational
to distinguish between inmates and non-inmates in fur-
therance of that goal. 190 F.3d at 996. The court rejected
that argument, holding that the government could ratio-
nally believe that prisoners are responsible for the major-
ity of frivolous suits, and therefore could classify on that
basis. Id. That argument is in fact consistent with our
decision in Lewis, 279 F.3d at 528-29, and with the deci-
sions of many other circuits upholding the constitutional-
ity of the filing fee provisions of the PLRA. Congress
could well have determined that inmates are responsible
for a disproportionate percentage of frivolous litigation
in the federal courts, and could properly create a disin-
centive to such filings, as by holding them responsible for
the filing fees. In Madrid, the court held that Congress
could rationally distinguish between inmates and lay-
persons in its effort to deter frivolous litigation.
   The parties here concede Madrid’s point that the govern-
ment has a legitimate interest in deterring frivolous
litigation, and that Congress could properly focus that
effort on inmates who are disproportionately responsible
for the problem. Johnson maintains, however, that the
PLRA fee restrictions at issue here are not rationally
related to that goal—in other words, that the fit between
the end and the means is so attenuated as to render the
restrictions arbitrary. The Madrid court never addressed
Nos. 00-3981 & 00-4115                                        55

that more critical issue of whether this particular classifi-
cation—the attorney fee restriction—is related to that goal.
  The First Circuit in Boivin faced a challenge more
analogous to the one before us. In that case, Boivin pre-
sented “in skeletal form” an argument that there was a
“complete lack of fit between the means that Congress
chose (capping attorney’s fees) and the end that it sought
to achieve (reducing frivolous prisoner litigation).” 225
F.3d at 44-45. The First Circuit understood the argument
to be that the fee cap would not deter the filing of frivolous
actions because fees are awarded only to prevailing par-
ties. The Boivin court rejected that argument:
    [c]ommon sense suggests that this ex post view is
    untenable. Congress presumably feared the moti-
    vating effect of the prospect of attorneys’ fees, ex
    ante, and the fee cap quells that effect by capping
    the potential payoff. This changes the odds, and
    forces both lawyer and client, out of self-interest, to
    assess likely outcomes with greater care before
    filing a suit that, even if nominally successful,
    might leave them holding a nearly empty bag.
Id. at 45. The court’s “ex post” and “ex ante” distinction,
however, fails to recognize that the PLRA fee restrictions
do not impose any added disincentive ex ante to the filing
of frivolous litigation, because § 1988 already prohibits
fees for such litigation. Boivin theorizes that Congress
feared that potential attorney’s fees could provide motiva-
tion for litigation. It then holds that the prospect of a
limited fee may alter that analysis at the beginning, thus
diminishing frivolous litigation. That assumes an initial
assessment by the inmate of the strength of the case,
because the fee recovery under the PLRA is tied to the
damages attained. If § 1988 authorized the payment of
fees for even frivolous litigation, then the PLRA fee re-
strictions would indeed reduce the motivation for filing
56                                   Nos. 00-3981 & 00-4115

that such fee availability provides. Just the opposite is
true, however.
   Under § 1988, no fees are possible for a frivolous case,
and in fact sanctions may be imposed for such litigation.
Therefore, the PLRA fee restrictions, by their very terms,
are inapplicable to such a case, because those restrictions
apply only to inmate cases “in which attorney’s fees are
authorized under section 1988.” See § 1997e(d)(1) & (2). In
addition, the § 1988 provisions deny all fees for frivolous
litigation, thus imposing a greater disincentive ex ante to
filing than the PLRA fee restrictions themselves would
impose. The First Circuit failed to answer how an in-
mate filing frivolous litigation would be motivated to
withdraw it by the prospect that he could obtain only
150% of the judgment as fees, when the law prior to the
PLRA already established that he could obtain no fees at
all for such litigation. If the goal is to reduce frivolous
litigation, the PLRA fee restriction adds nothing to the
equation. The law under § 1988 already removed the
prospect of any fees in such circumstances, and therefore
any contemplative effect that potential fees might have
on the filing decision was already fully leveraged by
§ 1988. Given the prohibition on fees under § 1988 for
frivolous litigation, the PLRA fee restrictions have no
impact whatsoever on the filing of frivolous litigation that
is not already provided by § 1988. The language of the
statute acknowledges that by limiting the PLRA fee
restrictions to cases in which fees are authorized under
§ 1988. Instead, the impact of the PLRA fee restrictions
ex ante is only on the inmate contemplating the filing of
non-frivolous litigation in which fees are potentially
available under § 1988. See Hadix, 230 F.3d at 844 n.3
(“with respect to truly frivolous claims, it could be plausibly
argued that the provision would have at best a very attenu-
ated effect on the litigation decision of a pro se inmate,
whose claims must be certified as possessing at least
Nos. 00-3981 & 00-4115                                     57

some merit at an early stage in the litigation. Further, the
fee cap provisions only apply to cases in which the prisoner
has actually prevailed, thereby assuring that at least one
claim was meritorious.”). The government, however, does
not and cannot argue that Congress has a legitimate
interest in discouraging meritorious litigation by inmates.
  In recognition of the weakness of the frivolousness
argument, the Sixth, Eighth, and to some extent the
Eleventh Circuits rested their decisions on the second
asserted governmental interest—that of decreasing mar-
ginal or trivial lawsuits. I will assume for purposes of
this dissent that the government may have a legitimate
interest in decreasing the number of meritorious civil rights
suits that involve trivial harms. The government links
its interest in decreasing trivial litigation with the fee
restrictions by opining that: (1) the fee restrictions will
provide a disincentive that did not previously exist for an
attorney to take a case involving trivial violations; (2) this
will increase the likelihood that attorneys will decline
to take such cases and (3) that prospect will in turn cause
inmates to refrain from filing such cases because they
will have to proceed pro se, or it will cause them to aban-
don their suits when unable to obtain representation.
   Again, however, the PLRA adds no restriction on fees
that was not already present under § 1988, and therefore
does not add a disincentive for the prisoner to file that
trivial litigation. For the same reason, the PLRA fee
restrictions would not impact an attorney’s decision to
file a frivolous or trivial suit in the first place. Under
either the PLRA or § 1988, that attorney would need to
initially assess the potential for fees before filing such a
case, and because § 1988 already prohibits fees in a frivo-
lous or trivial suit, the PLRA does not create any addi-
tional disincentive to filing such suits. All the PLRA does
is to notify attorneys filing frivolous prisoner civil rights
actions that they will get a maximum of 150% of zero
58                                 Nos. 00-3981 & 00-4115

instead of zero. The Sixth Circuit in Hadix and Walker
failed to analyze the PLRA restrictions in the context of
§ 1988 fees generally, and therefore did not address
whether the PLRA fee restriction added any disincentive
that was not already provided by § 1988 fee restrictions.
Because the Eighth Circuit’s analysis consisted entirely
of a quote from Walker, and the Eleventh Circuit merely
quoted Walker and Hadix without separate analysis, those
decisions manifest the same shortcoming. The § 1988
context is critical, however, in determining whether the
means are rationally related to the ends; the search for a
link between the classification and objective is what
gives substance to the requirement of equal protection.
Romer, 517 U.S. at 632-33 (to survive rational relationship
scrutiny, the law must be “narrow enough in scope and
grounded in a sufficient factual context for us to ascertain
some relation between the classification and the purpose
it served”).
  The PLRA fee restriction, placed in the context of the
§ 1988 remedy that it modifies, fails to cross the first
step in the three-step sequence that would supposedly
reduce the volume of trivial litigation, because it does not
provide a disincentive that did not previously exist for an
attorney to take a case involving trivial violations. That
is because attorney’s fees are already presumptively
unavailable in cases involving trivial or de minimis viola-
tions. See discussion supra at 16-18. Only where other
factors establish that a seemingly minimal victory was
actually significant, as where it involves a significant
legal issue and serves an important public interest, will
fees be available for a case that would otherwise be con-
sidered trivial or de minimis. Farrar, 506 U.S. at 122;
Simpson, 104 F.3d at 1001. The government does not
argue, nor could it, that it has a legitimate interest in
discouraging the filing of constitutional claims involving
a significant public interest. Therefore, that exception
Nos. 00-3981 & 00-4115                                     59

is inapplicable. We are left with the pre-existing § 1988
law that presumes that no fees are available for cases
involving de minimis or trivial harms. Therefore, before
the PLRA, an inmate deciding whether to file a lawsuit
would be presented with the prospect of attorney’s fees
for meritorious cases involving significant harms, but
with no fees available if the suit prevailed but involved
only trivial harms, and with no fees and possibly sanctions
if the suit was frivolous. The PLRA fee restrictions do
nothing to alter the status quo for the inmate who
brings the frivolous or trivial suit. It serves only to create
a significant disadvantage for those presenting signifi-
cant, meritorious challenges. Once again, however, the
government does not allege that it has a legitimate inter-
est in deterring the filing of such meritorious suits, nor
does it argue that prisoners as opposed to others are re-
sponsible for more of those suits or are otherwise a proper
class to single out for such a goal.
  Even if fees were available under § 1988 to attorneys
representing prisoners in trivial civil rights actions, the
subset of cases in that category impacted by the PLRA
fee restrictions is so small that it may actually be zero.
We begin with the reality that only 1% of all prisoner
cases even involve private attorneys. The other 4% in-
volve appointed counsel, and by definition courts do not
appoint counsel in trivial cases. Within that 1% of cases,
we are asked to believe that some of those cases are
trivial but that an attorney nonetheless agreed to repre-
sent the prisoner, that the attorney would not be de-
terred from filing by the prospect of little or no fees
under the “qualitative” restriction of § 1988, but that the
attorney will be deterred by the “quantitative” restriction
of the PLRA. There is no reason to believe that any cases
fall within that hypothetical reach.
   The district court, faced with the reality of prisoner
litigation on a daily basis, was skeptical of this line of
60                                   Nos. 00-3981 & 00-4115

reasoning. The court noted that “in nearly 100%” of pris-
oner cases involving representation, the attorneys were
appointed by the court, and that of the 1,980 prisoner civil
rights cases filed in the Wisconsin federal courts between
January 1995 and September 1999, only 2.5% had coun-
sel appointed. Johnson v. Daley, 117 F. Supp.2d 889, 898
(W.D. Wis. 2000); see also Roger A. Hanson & Henry W.K.
Daley, United States Dept. of Justice, Bureau of Justice
Statistics, Challenging the Conditions of Prisons and
Jails: A Report on Section 1983 Litigation, at 21-22 (Table
6) (Dec. 1994) (recounting that 96% of prisoner civil rights
actions are filed pro se, with attorneys appointed in ap-
proximately 4% and private attorneys in approximately
1% of the cases). The court noted that in its thirty years
of handling prison civil rights cases, it could think of
none that were attorney initiated. 117 F. Supp.2d at 898.
The court concluded that the asserted connection between
the filing decision and attorney’s fees was too tenuous:
     At the heart of defendant’s argument is the idea
     that prisoners perform a cost-benefit analysis in
     deciding whether to file a lawsuit, weighing a
     variety of factors. Although it is reasonable to
     assume that a pro se prisoner does do this, it is
     irrational to conclude that he bases his decision on
     the distant possibility that at some future time, his
     presently non-existent lawyer might recover a
     smaller rather than a larger amount of fees.
Id. at 896. The court further noted that although the
purported goal was to discourage frivolous cases, there
was “no chance” of counsel being appointed in frivolous
cases, and accordingly the only prisoners affected by the
fee provisions were those who filed meritorious com-
plaints for whom the court could not secure counsel
because of the limited fees available under the PLRA.
Congress’ goal of reducing the burden of prisoner suits on
federal courts would be ill-served by a fee restriction that
Nos. 00-3981 & 00-4115                                    61

forced district courts to plod through pro se filings in
meritorious cases because of the inability to obtain ap-
pointed counsel. The reality in which the fee restrictions
operates negated the purported connection between the
classification and the goals. Id at 900; see Heller, 509 U.S.
at 321(noting that “even the standard of rationality as
we so often have defined it must find some footing in the
realities of the subject addressed by the legislation”).
  On the other hand, the PLRA fee restrictions have a
very direct, foreseeable, and inevitable impact on the
meritorious actions filed by attorneys, whether appointed
or privately retained. Where the relation with the al-
leged governmental interest is that dubious, and the
impact on an unrelated class of meritorious cases so ob-
vious and severe, no rational connection exists between
the classification and the purported interest.
  I must emphasize that we are not concerned here with the
possibility that the PLRA fee restrictions are merely
cumulative of provisions in § 1988. Statutes do not vio-
late equal protection solely because they overlap some-
what with other pre-existing remedies. The problem in
this case is that the government interest justifying the
classification is in the deterrence of frivolous and trivial
suits, yet the PLRA restrictions will not even apply to
such suits. The language of the PLRA clarifies that the
fee restrictions apply to actions in which § 1988 fees
are authorized, thus making the contours of § 1988 the
starting point in the analysis. Because no fees are avail-
able for frivolous or trivial cases, the PLRA fee restric-
tions will never apply to such cases, and therefore the
governmental interest in deterring those cases is wholly
inapposite.
  Although the fit between means and ends need not
be perfect, there must be some fit in order for the legisla-
tion to survive rational relationship scrutiny. If the inter-
62                                  Nos. 00-3981 & 00-4115

est is in deterring frivolous and trivial litigation, but the
legislation impacts only non-trivial meritorious litiga-
tion, that fit is lacking. The present case bears witness
to the lack of fit between the fee restrictions and the
deterrence of frivolous litigation. Johnson’s meritorious
claim concerned actions which placed his life in danger.
His claim cannot be characterized as trivial under any
definition of that term. Nevertheless, he presented evi-
dence to the district court that at least four private at-
torneys refused to take his case, and he obtained represen-
tation only after counsel was appointed for him by the
district court. That attorney, having accepted the appoint-
ment from the court, is now faced with the prospect of
recovering fees which are inadequate to compensate for
the effort reasonably expended and the risk undertaken,
and that meager compensation is attributable solely to the
status of the client as incarcerated rather than to the
relative merit of the claim. Of course, a statute does not
fail the rational relationship test solely because its im-
precise reach impacts persons beyond those within its
legitimate interest. Neither, however, can we analyze the
claim in some kind of Never-Neverland, where the con-
text and the actual reach of the statute are ignored. See
Romer, 517 U.S. at 632-33 (to survive rational relation
scrutiny, law must be grounded in sufficient factual con-
text for Court to ascertain some relation between the
classification and the purpose it serves); Heller, 509 U.S. at
321(“even the standard of rationality as we so often have
defined it must find some footing in the realities of the
subject addressed by the legislation”); Lindsey, 405 U.S. at
78 (analyzing the statutory double-bond requirement in
the context of the pre-existing state statutes). The PLRA
fee restrictions go well beyond being somewhat under-
inclusive or overinclusive; rather, essentially all of the
interests that the restrictions allegedly target are ex-
cluded from its reach by § 1988, whereas the PLRA fee
restrictions have a direct, foreseeable impact on the class
Nos. 00-3981 & 00-4115                                    63

of litigation in which Congress claims no interest. Bur-
lington Northern R. Co. v. Ford, 504 U.S. 648, 653 (1992)
(recognizing that equal protection clause is violated if
the underinclusiveness and overinclusiveness is so great
that the rules can no longer be said rationally to imple-
ment the policy judgment); Romer v. Evans, 517 U.S. 620,
632 (1996) (amendment fails rational relationship test
where “its sheer breadth is so discontinuous with the
reasons offered for it that [it] seems inexplicable by any-
thing but animus toward the class it affects”). Where the
means are completely divorced from the end, as here, the
litigation fails the rational relationship test. See Massa-
chusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314
(1976) (examining whether mandatory retirement stat-
ute “has the effect of excluding from service so few officers
who are in fact unqualified as to render age 50 a criterion
wholly unrelated to the objective of the statute.”).
  This conclusion is required if the rational relationship
inquiry is to retain any meaning at all, and comports
with an analogous Supreme Court case, Lindsey v.
Normet, 405 U.S. 56 (1972). In Lindsey, the Court ad-
dressed the constitutionality of an Oregon Forcible Entry
and Detainer statute that required tenants appealing an
adverse determination to post bond in twice the amount
of the rent expected to accrue pending the appellate de-
cision. Id. at 64. The governmental interest advanced
for that double-bond requirement was to prevent frivo-
lous appeals for dilatory purposes, because absent an
added cost the tenant would have no disincentive to fore-
go the appeal. Additionally, the Oregon Supreme Court
opined that the additional bond payment would compen-
sate for waste or would be in lieu of damages for unlawful
holding over. Id. at 76.
  The U.S. Supreme Court analyzed the double-bond
provision in the context of the pre-existing Oregon appeal
provisions for civil cases generally. Id. at 74-78. In ordin-
64                                 Nos. 00-3981 & 00-4115

ary civil litigation, the litigant was required to file an
undertaking with one or more sureties covering all dam-
ages, costs and disbursements which might be awarded
against the appellant on appeal. Moreover, for an appel-
lant to obtain a stay of execution in a case involving a
monetary judgment, the undertaking had to also provide
that the appellant would satisfy the judgment if she lost
the appeal. Where the judgment was for real property,
that undertaking had to provide that the appellant
would commit no waste during the pendency of the appeal,
and would pay for the use of property during that time
should the appellant lose the appeal. Id. at 74-75. The
double-bond provision imposed additional obligations for
appeals from Forcible Entry and Detainer judgments. In
addition to the undertaking required of all civil litigants,
an appellant in such an action was compelled to provide
an undertaking with two sureties for the payment of twice
the rental value of the premises, and if the judgment
was affirmed, the landlord was automatically entitled to
twice the rents accruing during the appeal. Id. at 75.
  The Court began its analysis of the double-bond provi-
sion by recognizing that even though the state is not
required to provide appellate review, when an appeal
is afforded, equal protection required that the right not
be arbitrarily and capriciously granted to some litigants
and not others. 405 U.S. at 77. We are presented with a
similar situation here: Congress was not required to
provide a mechanism for awarding attorney’s fees, but
once provided the fees cannot be arbitrarily and capri-
ciously denied to one class of litigants without violating
equal protection.
  Although the Lindsey Court went on to acknowledge
that Oregon had a legitimate interest in ensuring that
appellants post adequate security for appeal, the Court
held that the double-bond requirement did not effectuate
that purpose. The Court emphasized that the undertak-
Nos. 00-3981 & 00-4115                                   65

ing already protected the landlord by assuring payment
for accrued rent and protection against waste. Id. at 77-78.
The Court rejected the claim that the double-bond provi-
sion would screen out frivolous appeals, because “it not
only bars nonfrivolous appeals by those who are unable
to post the bond but it also allows meritless appeals by
others who can afford the bond.” Id. at 78. Thus, the Court
recognized that the statute was deficient because it was
both over- and under-inclusive, and because pre-existing
statutes already protected the state’s asserted interest.
  Lindsey’s criticisms parallel the problems presented
by the PLRA. The asserted interests in deterring frivolous
and trivial litigation are already covered by § 1988, which
does not allow any fees at all in such cases. In that con-
text, the limitation on the amount of fees is meaningless
for those type of cases. Moreover, the PLRA inevitably
impacts the non-trivial, meritorious civil rights cases
which Congress claims no interest in deterring. The im-
pact of the 150% limitations are magnified in the prison
context, where damage awards are consistently lower
than are provided in actions by non-prisoners and where
the risk of no recovery is much greater. By linking fees to
a percentage of those lower damages, the fee has a great-
er adverse impact in the prison context than might be
experienced in non-prisoner litigation. Finally, the fee
restrictions at issue in this case are just two of a num-
ber of other restrictions on fees in § 1997e(d). Section
1997e(d)(1) limits the fee amount in two ways: the fee
must be directly and reasonably incurred in proving an
actual violation, and the amount must be proportion-
ately related to the court ordered relief or directly and
reasonably incurred in enforcing the relief ordered for the
violation. Therefore, the 150% cap on total fees and on the
hourly rate will in all cases operate to reduce the fee
award below that baseline amount of fees that were di-
rectly, reasonably incurred and proportionate to the
66                                  Nos. 00-3981 & 00-4115

relief ordered. This impact further undermines the argu-
ments made in this case. The fee restrictions have no
impact on the frivolous and trivial cases, and operate
only to reduce the fee award in meritorious litigation
below the amount that was both reasonably incurred and
proportionate to the relief. The restrictions therefore
lack the fit between classification and governmental
interest that is necessary to ensure that the classification
is not drawn for the purpose of disadvantaging the group
burdened by the law. Romer, 517 U.S. at 633. The fit
between means and ends is even more attenuated in this
case than in Lindsey, and therefore the PLRA fee restric-
tions violate equal protection. See also Rinaldi v. Yeager,
384 U.S. 305, 310 (1966) (invalidating requirement that
only incarcerated persons repay the costs of transcripts;
holding that the statutory interest in deterring frivolous
appeals cannot survive equal protection scrutiny be-
cause the statute inevitably burdens many whose unsuc-
cessful appeals were nonfrivolous, while leaving untouched
many whose appeals were frivolous.)
  The remaining interests asserted by the government
similarly are insufficient to survive even that minimal
level of scrutiny. The government maintains that the
PLRA fee restrictions are rationally related to the govern-
ment interests in reducing federal court intervention into
state management of prisons, preventing windfall fee
awards, and protecting the public fisc. The first argument
is that successful prison litigation may result in consent
decrees, involving the federal court in state management
of prisons, and that the fee restrictions may reduce the
incentive for prisoners to file such claims, thus diminishing
federal court involvement in state management of the
prisons. The remaining arguments similarly focus on the
impact of meritorious litigation on the state, asserting that
the fee restrictions would cabin judicial discretion in
awarding fees, thus reducing the potential for windfall fee
Nos. 00-3981 & 00-4115                                      67

awards, and would protect the public fisc by decreasing
the fees that must be paid out of the state treasuries. All
of these justifications focus on the impact occasioned by
meritorious prisoner litigation. Certainly, the states
would save money if less meritorious litigation were filed
against them, and if fees available for such litigation
were restricted (although, again, the government’s inter-
est must be a legitimate one to survive scrutiny.) Similar
savings could be obtained if Congress passed a similar
fee restriction applicable to all blue-eyed litigants, all
government employee litigants, or all litigation concerning
the educational system. Equal protection, however, re-
quires more than just a showing that some goal is furthered
by the legislation; rather, equal protection requires “some
rationality in the nature of the class singled out.” Rinaldi,
384 U.S. at 308-09; Schlib v. Kuebel, 404 U.S. 357, 368
(1971).
   The Court examined the need for that fit between classifi-
cation and goal in Rinaldi. There, a New Jersey statute
required indigent persons convicted of a crime, who
were confined to prison, to repay the cost of the transcript
if they were unsuccessful on appeal. It required no such
repayment, however, from those who received a suspended
sentence, probation, or only a fine. The state argued that
its statute was designed to replenish the county treasury
from those who had benefitted from county expenditures,
and that it would deter frivolous appeals. 384 U.S. at 309-
10. The Court rejected that argument, however, holding
that the statute was unconstitutional under the Equal
Protection Clause. Certainly, the statute would help re-
plenish the county treasury, but that furtherance of the
fiscal goal did not end the Court’s inquiry. Instead, the
Court held that the Equal Protection Clause requires that,
“in defining a class subject to legislation, the distinctions
that are drawn have ‘some relevance to the purpose for
which the classification is made.’ ” Id. at 308-09. In Rinaldi,
68                                   Nos. 00-3981 & 00-4115

the classification distinguished institutionalized unsuccess-
ful appellants from those not institutionalized. The Court
held, however, that “[t]here is no defensible interest served
by focusing on that distinction as a classifying feature in a
reimbursement statute, since it bears no relationship
whatsoever to the purpose of the repayment provision.” Id.
at 309. Whether a person was institutionalized or not, or
the nature of the sentence imposed, was a trait unrelated
to the fiscal objective of the statute. Id. at 309-310. The
Court further rejected the state’s claim that the classifica-
tion was a matter of administrative convenience, because
those punished by fines could be reached through ordinary
garnishment, and repayment could easily be made a
condition of probation. Id. at 310. Thus, the Court again
recognized that the constitutionality of a statute cannot
be analyzed in a vacuum, but must include a recognition
of the real context in which it operates. Because incarcera-
tion status had no rational connection to a transcript cost,
the Court held that the statute lacked rationality in the
nature of the class singled out and was unconstitutional
under the Equal Protection Clause. Id.; Schlib, 404 U.S.
at 368; see also James v. Strange, 407 U.S. 128 (1972)
(relying on Rinaldi and holding that statute giving
state right to recover legal defense costs from indigent
defendants and depriving them of protective exemptions
violates equal protection).
   We are presented with the same situation in address-
ing the remaining governmental interests asserted here.
The government asserts an interest in diminishing the
fiscal burden of fees on the states, and also in decreasing
the costs associated with defending and monitoring com-
pliance in cases of meritorious litigation. There is no
rationality, however, in imposing such a restriction on
attorneys representing institutionalized persons, because
the locale of the litigant is unrelated to the fiscal objective.
Although Congress can approach a problem piece-meal,
Nos. 00-3981 & 00-4115                                     69

there is no attempt in the briefs to explain why inmates
should be singled out over non-inmates for the restriction
in cases involving meritorious litigation, which is all that
is addressed by these last three proffered governmental
interests. For instance, the prisoner/non-prisoner classifica-
tion makes no sense if the interest is in simply protect-
ing the public fisc, because there is no reason to believe
that prisoners are filing more non-trivial meritorious
cases than non-prisoners, or that they are achieving
windfall fee awards in greater numbers in such cases. In
fact, the record indicates that at the time the PLRA fee
restrictions were enacted, nearly 96% of all prison litigation
was pro se, and there is no correlation between inmate
status and windfall fee awards (at least no correlation that
would indicate such awards are more likely to be provided
to inmates; the reverse, however, might be true). There
is no rational basis to connect inmate status with the
goal of reducing the fiscal burden any more than Congress
could single out blue-eyed litigants and restrict their fees.
The classification itself has to be related to the interest
asserted, and it is not. Congress in enacting the PLRA
was concerned with the flood of frivolous litigation, not
the flood of meritorious litigation. There is simply no
basis in the record or in theory upon which we could hold
that meritorious litigation by prisoners is creating an
economic burden justifying the singling out of inmates for
this type of restriction. There is, in short, no connection
between the fiscal goals of the statute and the status of
the meritorious litigant as either an inmate or a non-
institutionalized individual.
  As a means of discouraging frivolous or trivial suits
by prisoners, the PLRA imposes no restriction on fees
that § 1988 does not already impose. As a means of reduc-
ing the burden on states, there is no rational reason to
single out prisoners. The PLRA fee restrictions will,
however, have a significant, predictable impact on the
70                                   Nos. 00-3981 & 00-4115

ability of prisoners with meritorious cases to obtain repre-
sentation. As the district court recognized, “the only
prisoners affected are those who file meritorious complaints
for whom the court cannot secure counsel because of the
limited fees available to lawyers in such cases.” Johnson,
117 F. Supp. 2d at 896. Rather than decrease the burden on
courts, these restrictions will have the opposite effect,
making it more difficult for courts to persuade lawyers to
accept appointment. Id. at 898. The inevitable result will be
that constitutional violations against prisoners will go
unremedied, and that is contrary to the purposes of the civil
rights acts and § 1988. Congress has no legitimate govern-
mental interest in deterring the filing of meritorious
lawsuits. As such, the classification is not rationally related
to the goals and fails Equal Protection scrutiny. I respect-
fully dissent.




   FLAUM, Chief Judge, dissenting. In my judgment, as
Judge Rovner has indicated in her dissent, the plurality’s
proposed benchmarks for answering the “compared to
what?” question miss the mark. The appropriate focus
should be between prisoner and nonprisoner litigants
seeking fees under § 1988—indeed, I believe that perhaps
the most apt comparison would be between former pris-
oners bringing suit for violations that occurred during
their imprisonment and current prisoners bringing suit
for identical violations. Cf. Kerr v. Puckett, 138 F.3d 321,
323 (7th Cir. 1998) (holding that prisoner as defined in 42
U.S.C. § 1997e(h) does not comprehend a felon who has
been released). Concluding that Judge Rovner has identi-
fied the correct approach for comparison purposes and
agreeing with the well-reasoned analysis contained in Parts
II and III of her opinion, I respectfully dissent.
Nos. 00-3981 & 00-4115                                71

A true Copy:
      Teste:

                      ________________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                 USCA-02-C-0072—8-19-03
