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Separate and Unequal Justice for Prisoners

By David C. Fathi

S.Z., a resident in a juvenile detention facility, was raped and repeatedly beaten by other detainees over a period of months. Some staff encouraged the beatings and would arrange fights between detainees. But when S.Z. filed suit against state officials, his case was dismissed. Because S.Z. was considered a prisoner under federal law, his failure to file a written complaint with the detention facility within 48 hours of each rape or beating had forfeited his right to sue, regardless of the harm he had suffered.

The United States considers itself a nation of equality before the law. But for one population, the promise of equal justice is illusory. The Prison Litigation Reform Act (PLRA), passed by Congress in 1996, creates a separate and unequal legal system for the 2.3 million incarcerated persons in the United States.

The PLRA singles out lawsuits brought by prisoners for a host of burdens and restrictions that apply to no other group. As a result of these restrictions, courts have thrown out cases brought by prisoners seeking protection against unhealthy or dangerous conditions of confinement, or those seeking a remedy for injuries inflicted by prison staff and others. These restrictions apply not only to persons who have been convicted of crime, but to pretrial detainees who have not yet been tried, and to children held in juvenile detention facilities. Human Rights Watch has been unable to identify any other country in which national legislation singles out prisoners for a unique set of barriers and obstacles to vindicating their legal rights in court.

One part of the law requires that before a prisoner may file a lawsuit in court, he or she must first take the complaints through all levels of the prison or jail's grievance system, complying with all deadlines and other procedural rules of that system. That might sound reasonable, until you realize that the people who design and administer the grievance system are the same people the prisoner is likely to be suing. This creates obvious incentives for prison officials to design grievance systems with short deadlines, multiple steps, and numerous technical requirements.

The result is that grievance systems have become a trap for the unwary, in which prisoners have seen their right to sue forever lost because they failed to comply with picayune technical requirements or missed filing deadlines that are often as short as a few days. One prisoner's lawsuit was dismissed because he had been hospitalized for the entire grievance filing period and therefore missed the deadline. The case of another prisoner, who claimed that he was threatened and assaulted by a corrections officer, was thrown out because he did not first discuss the issue with the officer who had allegedly assaulted him.

The law also provides that a prisoner may not recover compensation for "mental or emotional injury" without making a "prior showing of physical injury." Under this provision, prisoners who have been subjected to sexual assault and other intentional abuse by prison staff have been denied a remedy. In one case, a jury found that prison staff falsely cited a prisoner for a disciplinary infraction, sending him to solitary confinement for more than a year. The court ruled that, although his rights had been violated, the prisoner could not recover any compensation because no physical injury was demonstrated. Another case brought by prisoners who alleged sexual abuse by staff was dismissed because the court found that they "[did] not make any claim of physical injury beyond the bare allegation of sexual assault."

A few years ago the world was appalled by the images of sadistic abuse at Abu Ghraib prison. Photos showed naked prisoners terrorized by snarling dogs, hooded prisoners made to stand in "stress positions," and prisoners piled naked into pyramids for the amusement of guards. If those abuses had occurred in a US prison, compensation for the victims would be barred by the "physical injury" requirement of the PLRA.

The law's sponsors argued that it was necessary to deal with "frivolous" lawsuits brought by prisoners. But the PLRA has resulted in dismissal of claims involving serious physical injury, sexual assault, and intentional abuse by prison staff - claims that no reasonable person would characterize as frivolous. Indeed, it has had a devastating effect on the ability of prisoners to protect their health, safety, and fundamental human rights in the courts. The number of cases filed by prisoners has fallen precipitously, and in the cases they do file, they are more likely to lose than they were before the law was passed. Thus, rather than weeding out frivolous claims, the law seems simply to have tilted the legal playing field against prisoners across the board.

Thirteen years after the passage of the PLRA, it has become apparent that Congress went too far. In the last Congress, Representatives Bobby Scott and John Conyers introduced the Prison Abuse Remedies Act, which would amend the worst features of the PLRA. The legislation is likely to be reintroduced soon, and it deserves strong support from the Obama administration. It's time to restore the rule of law to US prisons and jails and ensure that equality before the law is not an empty promise.

Originally posted on; appears on with author's permission.

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