From the Editor
From the Editor
by Paul Wright
Next April will mark the 20th anniversary of the Prison Litigation Reform Act (PLRA) – the continuing legacy of President Clinton and Congress which has done more to undermine the rule of law and constitutional rights since the internment of Japanese Americans in concentration camps during World War II.
When the PLRA was enacted in 1996, prisons and jails in some 42 states were under court injunctions or consent decrees designed to remedy unconstitutional conditions of confinement. In one of the most reactionary pieces of legislation in several generations (today no one remembers that Congress passed and Clinton signed the Defense of Marriage Act to ensure gays and lesbians could not be married at the same time the PLRA was enacted, and while DOMA has since been found unconstitutional, prisoners remain screwed), the PLRA served to ensure prisoners face extraordinary barriers just to have their constitutional claims heard by a federal court. No one else in America needs to exhaust an administrative remedy system set up by the very same people who are violating the Constitution in order to have their claims heard in federal court.
While the propaganda of the time claimed the PLRA was designed to curtail “frivolous” prisoner litigation, the reality is that no one in a position of power cares about frivolous litigation since, by the nature of being frivolous, it has no merit, goes nowhere and does not interfere with the daily functions of the American gulag. Rather, the PLRA was all about limiting meritorious prisoners’ rights litigation and ensuring that prisoners could not vindicate their constitutional rights. Also, most importantly, that prisoners would have great difficulty finding counsel willing to represent them, and even when courts found constitutional violations and had the will to order injunctive relief, that the PLRA would severely limit the scope, breadth and duration of any injunctions entered.
As Margo Schlanger’s cover story in this issue of PLN notes, the PLRA has been a smashing success in terms of gutting prisoners’ ability to have meritorious litigation heard on the merits and to obtain counsel and meaningful injunctive relief. After the PLRA was enacted, hundreds of injunctions and consent decrees around the country governing prison and jail conditions were summarily vacated or terminated, and not surprisingly nearly all such facilities now have conditions far worse than before the PLRA was signed into law.
For all the rhetoric and hot air being blown about over the purported need to end mass incarceration or limit its scope a tad bit, there is no talk whatsoever of repealing the PLRA, or helping ensure that prisoners are not beyond the reach and protection of the U.S. Constitution and retain meaningful access to the courts. In the early days of Obama’s presidency there was some talk of amending or repealing the PLRA, but it quickly became apparent that the Obama administration had neither the interest nor the stomach to tackle prison reform in a substantive manner.
The impact and importance of the PLRA is very hard to overstate. During the modern era of American prison reform, from around 1971 to 1990, the federal judiciary was the single most important catalyst for progressive reform that U.S. prisons had seen since the early 1950s. Courageous federal judges across the country took their constitutional oath of office seriously and enjoined barbaric and inhumane prison conditions and practices. Reading the court decisions from many of the epic conditions cases of the 1970s and 80s, cases like Ruiz v. Estelle, Battle v. Anderson, Hoptowit v. Rhay, Costello v. Wainwright, etc. (and every state had them) makes clear the level of depravity, cruelty and barbarism that was the norm of the American penal system by the early 1970s.
In many respects, judicially-ordered prison reform was far from an ideal solution and many judges noted they were ill-equipped and ill-informed to remedy prison and jail conditions. But the reason judges became the most important prison reformers of the 20th century in the U.S. had less to do with how good or bad they were at the job, and more because the executive and legislative branches had exhibited decades or centuries of callous neglect at best and outright cruelty at worst towards prisoners.
Nothing better exemplifies this than the PLRA, which largely strips judges of the ability to hear and rule on meritorious prisoner cases, to pay their attorneys at full rates and to order injunctive relief that lasts more than two years. As the federal judiciary became less concerned about individual rights across the board, many courts welcomed the enactment of the PLRA as a way to quickly clear their dockets. Indeed, these days very little prisoner litigation is heard on the merits; rather, the bulk of the argument is whether or not the prisoner has complied with the PLRA, particularly administrative exhaustion requirements.
Ms. Schlanger’s article succinctly and eloquently makes the case why the PLRA should be repealed. Any politicians who babble about the supposed need to limit mass incarceration should be asked what they are going to do to repeal the PLRA and ensure prisoners are treated humanely and in a constitutional manner. Until then, it is probably safe to say they are not very serious.
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