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Legally-Sanctioned Negligence—A Commentary by Giovanna Shay

The following commentary was posted on TomPaine.com on March 23, 2007.

Legally-Sanctioned Negligence
By Margo Schlanger and Giovanna Shay

Margo Schlanger is a Professor of Law at Washington University in St. Louis. And a member of the Commission on Safety and Abuse in America’s Prisons. Giovanna Shay is a Robert M. Cover Clinical Teaching Fellow at Yale Law School, and was counsel in Woodford v. Ngo and Jones v. Bock, two Supreme Court cases interpreting the PLRA.

Last month, the American Bar Association’s general policy-making body passed a resolution urging Congress to alter certain sections of the Prison Litigation Reform Act (PLRA). Congress should, indeed, take up this important matter.

The United States has the world’s highest incarceration rate, with 2.2 million people behind bars on any given day and many millions more who pass through a jail or prison each year. The vast majority of these prisoners will be released into our communities, so it’s in everyone’s interest to ensure that people are not subjected to abuse or degradation whileincarcerated, so that they can leave jail or prison no worse than they came in.

Obviously, it is best if correctional administrators can themselves resolve prisoners’ valid complaints, but prisoners’ access to federal courts to redress constitutional violations has proven essential. It is one of the few mechanisms that we have to ensure that correctional systems are accountable for the public health and safety consequences of their treatment of prisoners.

Passed in 1996, the Prison Litigation Reform Act contains a number of provisions that shield abuse and inhumane treatment from judicial—and hence public—scrutiny. Those provisions undermine accountability and erode our nation’s proudest commitment, that everyone is protected by the rule of law.

The PLRA bars damages for constitutional violations that do not lead to physical injuries—so that even proven violations that relate to freedom of religion, free speech or due process of law go uncompensated. And the PLRA bars courts from considering meritorious constitutional claims if prisoners have failed to comply with each and every one of the myriad technical requirements of a prison’s administrative complaint system before going to court. Where non-prisoners have between one and three years to file civil rights suits, prisoners have deadlines as little as a week or even less. Worse, these provisions apply equally to adult prisoners and vulnerable youth.

And these are not abstract complaints. The PLRA has in case after case shielded abuse from the scrutiny of the courts:

In one Indiana case, a federal district court dismissed a case brought by a teenager who was raped and repeatedly beaten by other detainees. Although the young man’s mother had contacted facility staff, the Department of Corrections Commissioner, Indiana judges and the Governor, the court concluded that the PLRA required it to dismiss the claim because the victim had not himself filed a complaint within the facility. Institutional staff had instigated similar beatings, and the deadline for filing such grievances was only two business days. A Department of Justice investigation later confirmed that the facility failed to protect youth in its care, and that the grievance system at the facility was “dysfunctional.”

A federal court in Mississippi dismissed the claims of a number of male prisoners who were sexually assaulted by a corrections officer. The court concluded that the PLRA physical injury requirement precluded recovery, reasoning that sexual assault did not qualify as a physical injury within the meaning of the PLRA.

A federal appeals court overturned a jury award for a Jewish prisoner who was denied a kosher diet. The appellate court concluded that a violation of the First Amendment right to freedom of religion did not meet the PLRA physical injury requirement.

Many of the PLRA’s consequences were probably not intended—or even imagined—by its drafters. Senator Orrin Hatch, one of the Act’s major sponsors, said during the debates on the PLRA, “I do not want to prevent inmates from raising legitimate claims.” Unfortunately, that’s exactly what the PLRA has done—and it has allowed abusers to evade exposure and responsibility.

The ABA is not the first organization to urge reform of the PLRA. Last summer, the Commission on Safety and Abuse in America’s Prisons—a private blue-ribbon panel composed of experts including corrections officials and law enforcement officers as well as civil rights advocates—made similar recommendations. It is time to amend or repeal the PLRA, and to protect the rule of law in America’s prisons and jails.