Damage Done: the Prison Litigation Reform Act.

This we must change this session of Congress, with Webb's Commission on Criminal Justice Reform.

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I. Summary

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 preservative of all rights. —United States Supreme Court, McCarthy v. Madigan, 503 U.S. 140, 153 (1992).

This amendment will help put an end to the inmate litigation fun-and-games. —Senator Robert Dole, during Senate debate on an early version of the Prison Litigation Reform Act, September 29, 1995.

What was a sentence for a white collar crime that should have ended many years ago will never end. I got a life sentence. —Keith DeBlasio, December 8, 2008. DeBlasio was raped while incarcerated in a federal prison and contracted HIV as a result.

Carved in stone over the entrance to the United States Supreme Court are the words “equal justice under law.” And for more than 140 years, the US Constitution has guaranteed to all persons the “equal protection of the laws.”[1] But for those in prisons, jails, and juvenile facilities in the United States, the promise of equal justice is illusory. The Prison Litigation Reform Act (PLRA), passed by Congress in 1996, denies equal access to the courts to the more than 2.3 million incarcerated persons in the United States. 

The PLRA subjects lawsuits brought by prisoners in the federal courts to a host of burdens and restrictions that apply to no other persons. As a result of these restrictions, prisoners seeking the protection of the courts against unhealthy or dangerous conditions of confinement, or those seeking a remedy for injuries inflicted by prison staff and others, have had their cases thrown out of court. These restrictions apply not only to persons who have been convicted of crime, but also to pretrial detainees who have not yet been tried and are presumed innocent. Human Rights Watch is not aware of any other country in which national legislation singles out prisoners for a unique set of barriers to vindicating their legal rights in court.[2]

The PLRA’s restrictions include:

The exhaustion of remedies requirement. Before a prisoner may file a lawsuit in court, he must first take his complaints through all levels of the prison’s or jail’s grievance system, complying with all deadlines and other procedural rules of that system.[3] If the prisoner fails to comply with all technical requirements, or misses a filing deadline that may be as short as a few days, his right to sue may be lost forever.

The physical injury requirement. A prisoner may not recover compensation for “mental or emotional injury” unless she makes a “prior showing of physical injury.”[4] Under this provision, prisoners who have been subjected to sexual assault and other intentional abuse by prison staff have been denied a remedy. Indeed, because of this provision, many of the abuses that took place in Iraq’s Abu Ghraib prison would not have been compensable if they had occurred in a US prison or jail.

Application to children. The provisions of the PLRA apply not only to adult prisoners, but also to children confined in prisons, jails, and juvenile detention facilities.[5] The exhaustion requirement has proven to be an especially formidable barrier to justice for incarcerated children, particularly in light of court rulings that efforts to exhaust on their behalf by parents or other adults do not satisfy the PLRA.

Restrictions on court oversight of prison conditions. The PLRA restricts the power of federal courts to make and enforce orders limiting overcrowding or otherwise remedying unlawful conditions in prisons and jails.[6]
Limitations on attorney fees. If a prisoner files a lawsuit and wins, establishing that her rights have been violated, the PLRA limits the amount her attorneys can be paid.[7]

The PLRA’s sponsors argued that the law was necessary to deal with “frivolous” lawsuits brought by prisoners. Some prisoners, like some non-prisoners, do file frivolous suits, and the PLRA includes the reasonable requirement that prisoner cases be subject to a preliminary screening process and be immediately dismissed if they are frivolous or malicious, or if they fail to state a claim on which relief can be granted.[8] But the cases described in this report show that other provisions of the PLRA have 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.

Unlike many other democracies, the United States has no independent national agency that monitors conditions in prisons, jails, and juvenile facilities and enforces minimal standards of health, safety, and humane treatment. Perhaps for this reason, oversight and reform of conditions in these institutions has fallen primarily to the federal courts. Beginning in the 1970s, lawsuits brought by prisoners led to improved medical care, sanitation, and protection from assault. While significant problems remained, by the time the PLRA was passed in 1996, US prison conditions had been transformed in just a few short decades.

The effect of the PLRA on prisoners’ access to the courts was swift. Between 1995 and 1997, federal civil rights filings by prisoners fell 33 percent, despite the fact that the number of incarcerated persons had grown by 10 percent in the same period. By 2001 prisoner filings were down 43 percent from their 1995 level, despite a 23 percent increase in the incarcerated population. By 2006 the number of prisoner lawsuits filed per thousand prisoners had fallen 60 percent since 1995.

If the effect of the PLRA were to selectively discourage the filing of frivolous or meritless lawsuits, as its sponsors predicted, then we would expect to find prisoners winning a larger percentage of their lawsuits after the law’s enactment than they did before. But the most comprehensive study to date shows just the opposite: since passage of the PLRA, prisoners not only are filing fewer lawsuits, but also are succeeding in a smaller proportion of the cases they do file. This strongly suggests that rather than filtering out meritless lawsuits, the PLRA has simply tilted the playing field against prisoners across the board. The author of a comprehensive study on the impact of the act concludes that “the PLRA’s new decision standards have imposed new and very high hurdles so that even constitutionally meritorious cases are often thrown out of court.”

Jeanne Woodford, the former warden of San Quentin State Prison and former director of the California Department of Corrections, told Human Rights Watch that she believes the PLRA has endangered the progress that has been made in prison administration:

I do think the PLRA does need to be reformed. I think that there’s prison experts around the country who would agree with that.... I’m told that many people in [the American Correctional Association] believe that as well. That they’re starting to see abuses.... A lot of the corrections professionals were telling me that they had concerns that a lot of the steps forward they’d made in Texas were reverting because of the PLRA. And I can see that happening in California too.[9]

Drawing on interviews with former corrections officials, prisoners denied remedies for abuse, and criminal justice experts, this report examines three provisions of the PLRA—the exhaustion requirement, the physical injury requirement, and the law’s application to children—and their effect on prisoners’ access to justice.
Thirteen years after the passage of the PLRA, it has become apparent that Congress went too far. Congress must act now to amend the PLRA, 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.[10]