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ABA Recommends Congress Repeal Portions of PLRA

by David M. Reutter

The American Bar Association’s Criminal Justice Section has issued a report that “urges Congress to repeal or amend specified portions of the Prison Litigation Reform Act (PLRA).” That report was sent for approval and action by the ABA’s House of Delegates in February 2007, which approved it. 

The report began by noting the PLRA, which had far-reaching implications, did not receive in-depth review by Congress, but “was inserted and approved as a rider to an omnibus appropriations bill.”
There are several reasons “the PLRA is of especial concern to all who believe in the need to the Constitution and other legal requirements,” the report said.

First, the PLRA creates for prisoners “formidable, and often insurmountable obstacles to seek redress from courts the violation of their federally secured rights." Without access to the courts, the legal rights accorded prisoners are ephemeral and unenforceable meaningless words and empty promises.

Next, the PLRA contravenes the basic premise “that it is important for prisoners to have ready access to the courts to enforce their legal rights as it is for everyone in our country.” Third, prisoners are isolated from public view, in part because they are so reviled, and the PLRA singles them out for differential treatment as individuals vulnerable to violations of their constitutional and other rights. A report by the Commission on Safety and Abuse in America’s Prisons, Confronting Confinement (2006), reaffirmed what PLN readers already know: “that problems of sexual and physical abuse of prisoners, the failure to meet their basic medical and mental-healthcare needs, and sordid conditions of confinement continue unabated in many prisons and jails across the country.” Historically, federal courts have played an integral role in unveiling and remedying that mistreatment and violations of prisoner rights. Typically due to the abject failure of the legislative and executive branches of government to ensure safe, humane prisons.

Finally, “the PLRA singles out for differential treatment individuals who are particularly ill-equipped to surmount the barriers to justice the [PLRA] requires.” Most prisoners are functionally illiterate, with 70 percent performing at the lowest literacy levels. More than half of all prisoners are mentally ill. Additionally, the PLRA applies to juveniles.

The ABA recommended Congress make specific changes, as a first priority, to the PLRA. The first act must be to repeal the PLRA’s physical injury requirement. Under the PLRA, a prisoner cannot recover damages for mental or emotional injuries suffered in custody unless the prisoner was also injured physically.

That prohibition “bars prisoners confined in vile conditions or subjected to patent violations of their constitutional rights from obtaining compensatory relief.” It also bars relief for violations of fundamental rights under the First Amendment, to equal protection, and for procedural due process violations, as evidenced by court interpretations of the PLRA. 

The administrative exhaustion requirement of the PLRA was urged by the ABA to be amended to be expanded to be within the time period set by the statute of limitations. The PLRA’s administrative exhaustion requirement prohibits an action from being filed until those remedies have been exhausted. This has been interpreted by the courts to enact a procedural default rule that is “usually no more than fifteen days and in some states as little as two to five days.”

To allow prisons the opportunity to act, an action could be stayed while prisoners exhaust administrative remedies within the statute of limitations.

Congress also was urged to eliminate “the restrictions on the equitable authority of courts in conditions-of-confinement cases.” The PLRA limits preliminary injunctions to just ninety-days in prison cases. It also terminates any injunctive relief after two years, and a motion to terminate automatically stays the injunction for thirty to ninety days after the motion is filed.

The ABA said the scope of the courts’ equitable powers in cases involving prisoners should be no different than the scope of those powers in cases brought by all litigants.

The PLRA should also be amended to allow prisoners who prevail in civil-rights cases the same amount of attorney fees as those brought by the general public. Believing that enforcement of civil-rights is of the “highest priority,” Congress enacted 42 U.S.C. § 1988 because, without a fee-award provision enabling lawyers to recover their costs in representing civil-rights plaintiffs, victims of civil-rights violations often would be unable to procure the assistance of counsel.?

Under the PLRA, a prisoner must pay up to twenty-five percent of the damage award towards attorney fees. In addition, the PLRA creates a disincentive for attorneys to represent prisoners by imposing a cap on the hourly rate. Moreover, it caps the fee award at 150% of the judgment, which applies regardless of the amount of time the lawyer invested in the prisoner-client’s case. This has resulted in fee awards of $1.50. The PLRA makes it very difficult for prisoners to secure counsel to remedy violations of their civil-rights.

Juveniles should not be subject to the PLRA, the ABA said. They “had not filed the frivolous lawsuits that those lobbying for the PLRA?s enactment referred to in largely unsubstantiated anecdotes.”

Finally, Congress was urged to repeal the PLRA’s filing fee provisions. Currently, the filing fee in district courts is $350. Unless a prisoner pays the fee upfront, it must be paid by making a partial filing fee at the outset and the remainder of the fee paid over time. This “disparate treatment of prisoners dissuades impoverished prisoners from bringing potentially meritorious claims to court.”

In addition to those recommendations, Congress was urged to fully examine the PLRA’s repercussions on the ability of prisoners to bring meritorious legal claims to obtain redress for the violation of their constitutional rights.

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