“The PLRA has had a devastating effect on the ability of incarcerated persons to protect their health and safety and vindicate other fundmanetal rights,” concludes a June 2009 report titled No Equal Justice: The Prison Litigation Reform Act [PLRA] in the United States. The report was published by Human Rights Watch.
No Equal Justice says the PLRA places a host of burdens and restrictions on lawsuits filed by prisoners and that apply to no other persons. Those restrictions result in prisoners seeking the protection of the courts against unhealthy or dangerous conditions of confinement or a remedy for sexual assault and other injuries inflicted by prison staff and prisoners having had their cases thrown out of court.
In addition to detailing the circumstances of such cases, the report draws on interviews with former prison officials, prisoners denied remedies for abuse, and criminal justice experts to examine the PLRA’s effect on prisoners’ access to justice. No Equal Justice then makes recommendations on amending the PLRA.
The report begins by examining the United States’ prison population and oversight with that of other industrialized democracies. With 760 incarcerated persons for every 100,000 residents, the U.S. rate of imprisonment is five to ten times higher than other democracies.
Unlike those democracies, “the United States has no independent national agency that monitors prison conditions and enforces minimal standards of health, safety, and humane treatment.” By contrast, Great Britain has an Inspectorate of Prisons and 46 European states’ prisons are supplementarily monitored by a European Council committee.
Another departure from the practice of developed democracies is that most U.S. prisoners are denied the right to vote. Other democracies either allow prisoners to vote or only disenfranchise a small proportion of prisoners. Recognizing the U.S.’s disenfranchisement of prisoners, the U.S. Supreme Court has said, “Because a prisoner ordinarily is divested of the privilege to vote, the right to file a court action might be said to be his remaining most fundamental political right, because [it is the] preservative of all rights.”
Prior to enactment of the PLRA, the US prison system was transformed primarily through litigation rather than via executive or legislative action. With the enactment of the PLRA, prisoner litigation quickly took a swift dive. Despite the prison population growing 10% between 1995 and 1997, federal civil rights filings by prisoners fell 33%. That trend continued. Using the 1995 level as the yardstick prisoner filings fell by 43% by 2001 while the population grew 23%. By 2006, prisoner filings had fallen 60%.
The report’s first recommendation is to remove the PLRA’s requirement that courts dismiss lawsuits because the prisoners have not exhausted the prison or jail grievance system, replacing it with a provision to allow courts to temporarily stay the action while the prisoners take their complaints through the grievance system.
When grievance systems were created in the 1970’s, it was never contemplated that a misstep in the process could result in a prisoner forfeiting the right to file in court. That, however, is exactly what happens under the PLRA without any exceptions being made or excuses allowed.
“A basic structural problem with the exhaustion requirement is that prison officials themselves – the defendants in most lawsuits brought by prisoners – typically design the grievance system which prisoners must exhaust before filing suit,” states the report.
The first problem with most grievance procedures is that the issue must usually be raised with the staff member involved, which usually results in retaliation. A more major problem is that the exhaustion requirement shortens the statute of limitations from years to a few days in most cases. Courts refuse to excuse the failure to comply with those deadlines even where extenuating circumstances exist. The report details cases where prison officials created those circumstances or where prisoner suits were dismissed for technical grievance errors.
Next, the report recommends allowing prisoners to recover compensation for mental or emotional injuries on the same basis as non-prisoners. Not only has the PLRA immunized rape by foreclosing cases of rape for failure to exhaust administrative remedies, but some courts have prohibited compensation on grounds that rape does not result in physical injuries.
Under the PLRA, a prisoner may not sue “for mental or emotional injury suffered while in custody without a prior showing of physical injury.” The courts have extended this to situations where it felt that the physical injuries were de minimus. The report details numerous instances where prisoners have been denied compensation for injuries that would be compensable if the litigant were not a prisoner. Many entail serious mental trauma, racial discrimination, denial of the right to practice religion, sexual assault, long term unjustified segregation, and even torture.
Finally, the report recommends removing from the scope of the PLRA persons held in juvenile detention facilities and persons under age 18 held in adult prisons and jails. “In most other settings, society recognizes the limited abilities of children by permitting (and in many other cases requiring) their parents or other adults to act on their behalf,” states the report. “However, federal courts have ruled that the efforts of parents or other adults on behalf of incarcerated children do not satisfy the PLRA’s exhaustion requirement.”
Thus, vindicating the legal rights of detained youth has become difficult due to their inability to fulfill the requirement because educational or maturity issues.
The PLRA was intended to discourage the filing of frivolous or meritless lawsuits. Yet, rather than prisoners winning a larger percentage of suits, the opposite is occurring, which suggests “that rather than filtering out meritless lawsuits, the PLRA has simply tilted the playing field against prisoners across the board.”
The report, following the heels of an American Bar Association resolution and a recommendation by the Commission on Safety and Abuse in America’s Prisons, says it’s time to reform the PLRA and amend the law “to restore the rule of law to US prisons, jails, and juvenile facilities, and ensure that ‘equal protection of the laws’ is not an empty promise.” The report is available on PLN’s website.
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