‘Case of the Week’ 4 (NCFCA): PLRA Reform

Note: This case deals with mature issues involving prison abuse. Researching and debating these topics can get quite graphic; as such, we don’t recommend this case for younger debaters, and those who do run it should use discretion when facing younger teams. – Ed.


Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2011 sourcebook, and are frequently contributed by non-COG authors. You will likely find material and sources in these cases that would not appear in the sourcebook. Also the backups are not intended to be complete. That said, we hope these cases will be useful to you; enjoy!

About the Author:  Joshua Rooney is going into his junior year in high school and his third year of debate. As an avid sports guy living in Tennessee, he didn’t really take debate seriously during environmental year, but broke at all three qualifiers he attended anyway. In his second year Josh “fell in love” with debate and turned into the nerd he was once scared of. Josh won two qualifiers, took second at the Region 7 Invitational, 21st at nationals, and went 27 – 2 with his intensely researched aff case. (All with his awesome partner, of course). Joshua is a COG 2011 author.

1AC: PLRA Reform

By Joshua Rooney

“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.” 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.”

Human Rights Watch (one of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author (Director of the US Program of Human Rights Watch, J.D.) “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009 [JR]

In America everyone deserves justice, because of this we stand Resolved: The United States Federal Government should significantly reform its criminal justice system. I will layout the case for reform in six clear observations over the course of this speech. So let’s get started with:

Observation 1: Clarifications

Under this observation I will examine a few key terms for this round. First of all:

Criminal Justice System is defined by Professors of Law Richard Frase and Robert Weidner as: “A criminal justice system is a set of legal and social institutions for enforcing the criminal law in accordance with a defined set of procedural rules and limitations.” (RICHARD S. FRASE, (Professor of Law at University of Minnesota, J.D. Chicago Law School), ROBERT R. WEIDNER, (Professor at University on Minnesota, Ph.D.) Accessed July 2011 “Criminal Justice System – Structural And Theoretical Components Of Criminal Justice Systems, The Systems In Operation, The Importance Of Viewing Criminal Justice As A System’, http://law.jrank.org/pages/858/Criminal-Justice-System.html#ixzz1RzrXBRbA [JR])

Next we look to a basic explanation our specific topic for this debate, the Prison Litigation Reform Act, enacted in 1996 was intended to stop frivolous lawsuits by criminals through three specific provisions: the first being the preliminary screening in which ridiculous cases are thrown out, the second being the exhaustive principle, which sets strict standards on how a lawsuit can be brought to court, the third is known as the physical requirement, which requires all lawsuits to show physical damage. Throughout this round these are the three provisions we will debate.

Observation 2: Framework

Our value that we ask you to hold above all others in this debate is Justice; the criterion we propose is simply comparative advantage. Meaning whichever team provides the best advantage toward justice should receive the ballot.

Observation 3: Background

There are two basic background points that we must look to for clarification.

1st Point: Effects of the legislation were never properly reviewed, from attorney Robert Johnson in 2007

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html [JR]

In 1996, Congress enacted the Prison Litigation Reform Act (PLRA). Pub. L. No. 104-34, 110 Stat. 1321 (1996). Although the PLRA placed substantial restrictions on prisoners’ access to the courts to vindicate constitutional and other legal rights, Congress never fully vetted the statute and its implications. A House Report issued in 1995 briefly discussed two House bills that contained some, but not all, of the provisions that were later included in the PLRA. H. R. REP. NO. 104-21, at 5-6 (1995). But the PLRA itself simply was inserted and approved as a rider to an omnibus appropriations bill, much to the consternation of members of Congress who recognized the need for in-depth review of legislation of such import. See, e.g., 142 CONG. REC. S2297 (1996) (statement of Senator Simon) (“I am very discouraged that this legislation was considered as one of the many issues on an appropriations bill. Legislation with such far-reaching implications certainly deserves to be thoroughly examined by the committee of jurisdiction and not passed as a rider to an appropriations bill.”).

2nd Point: The staggering statistics of prison rape and assault, from the Smart on Crime Coalition report in spring 2011

Smart on Crime Coalition, 2011, “Recommendations for the Administration and Congress”, http://www.besmartoncrime.org/pdf/Complete.pdf [JR]

“Sexual violence behind bars has reached crisis proportions. Based on a survey in prisons and jails nationwide, the Bureau of Justice Statistics estimated that 88,500 adult inmates were sexually abused in their current facility in the past year alone. In a similar survey of youth in juvenile facilities, a shocking one in eight reported being sexually abused in the previous year. In both types of facilities, staff-on-inmate abuse was more prevalent than abuse perpetrated by inmates.”

Observation 4: The Harms

Harm 1) Legitimate cases thrown out – two specific provisions in the PLRA cause this, as we see from Jennifer Wedekind of Georgetown Law in March 2011

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

“In cases of sexual assault, inmates are most often stymied by two PLRA requirements — an exhaustion of all administrative remedies and a showing of physical harm. If a prisoner fails to comply with the technical and often arbitrary requirements of the administrative procedures, or if the inmate misses one of the filing deadlines — which may be as short as 48 hours — his or her right to sue is forever forfeited. Cases are frequently dismissed because of technical errors, because the wrong form was used or because the complaint was submitted to the wrong entity within the sprawling prison system.”

Harm 2) Juvenile offenders endangered, from Human Rights Watch in 2009

Human Rights Watch (one of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009 [JR]

“The provisions of the PLRA apply not only to adult prisoners, but also to children confined in prisons, jails, and juvenile detention facilities. 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.”

An example, from Wendy Davis in June 2010:

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/ [JR]

“As a minor, Steven Zick spent time in three juvenile centers for theft. While in custody he was allegedly jumped by other detainees, beaten with a sock-covered padlock and raped. His mother filed a civil rights lawsuit on his behalf against the superintendents of the facilities and other officials. She had complained repeatedly to the authorities before filing suit. But Zick himself didn’t file a grievance while in custody. As a result, U.S. District Judge Robert L. Miller in the Northern District of Indiana dismissed his federal claims. Miller ruled that the 1996 Prison Litigation Reform Act barred the lawsuit.”

Harm 3) Accountability of our prison officials lost – from law professors Margo Schlanger and Giovanna Shay in 2009:

Margo Schlanger (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) and Giovanna Shay (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN [JR]

“When federal courthouses are barred to constitutionally meritorious cases, the resulting harm is not merely to the affected prisoners but to our entire system of accountability that ensures that government officials comply with constitutional mandates. The erection of hurdles to accountability should not be seen as “reducing the burden” for correctional administrators—it should be recognized as weakening the rule of law. The PLRA must be amended.”

When prison officials aren’t accountable, the abuse is magnified, as illustrated by an example from the Save Coalition:

Save Coalition (a group of organizations and individuals dedicated to protecting the U.S. prison, jail and youth detention population) as of July 12, 2011 “REFORM THE PRISON LITIGATION REFORM ACT: TOP 10 HARMFUL PLRA RESULTS” http://www.savecoalition.org/top10.html [JR]

A man filed formal grievances after being harassed by fellow inmates. In response, the prison officers sprayed his cell with gas, punched him twice in the face, and later contaminated his food with feces. The man‘s lawsuit was thrown out of court because the only “visible” physical injury was an abrasion on his head and that was not enough to go forward under the PLRA.”

Observation 5: Plan

Per recommendation of the Safe on Crime Coalition, and many others we will enact the following plan:

Mandate 1: Repeal the exhaustive principle in the PLRA. [Repeal 42 U.S.C. § 1997e(a)]

Mandate 2: Repeal provision that prohibits prisoners from bringing lawsuits for mental or emotional injuries without demonstrating a “physical injury”. [Repeal 42 U.S.C. § 1997e(e)]

Enforcement: Will be the United States Federal Government, the President, the Department of Justice, and any other necessary federal agencies.

Funding will be provided through normal means.

Timeline: Legislative changes will come into place immediately upon an affirmative ballot.

As the affirmative team we reserve the right to clarify this plan in further speeches if needed.

Observation 6: Solvency

There are two points under this observation.

1) Advocacy: Screening provision is sufficient, from Elizabeth Alexander and John Boston, both J.D.’s in November 2008

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project, J.D.), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111 [JR]

Over a decade of experience has shown that the PLRA’s preliminary screening requirement is sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the burden on courts posed by prisoner cases that are not meritorious. However, other provisions of the PLRA must be amended or repealed in order to restore the rule of law to prisons and jails so that people, including children, can have their meritorious constitutional claims heard in court.”

2) Logical Analysis

(analyze the plan in your own words… something like harms are caused by these two provisions, we eliminate them and solve for the harm)

In conclusion, we have sacrificed justice and the rule of law for speed and ease in our lawsuit system. Our plan will solve for both frivolous lawsuits and make sure that laudable cases have a chance in court. The question I asked at the end is simply: is it ever worth allowing rape and assault to go unpunished?

Backup: PLRA Reform

Inherency/Background

Types of cases PLRA has dismissed

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Courts have dismissed cases involving inmates’ nausea and vomiting, general bruising, bruised ribs, minor swelling, minor bleeding, abrasions and lacerations, skin fungus, dehydration, migraine headaches, increased blood pressure, aggravated hypertension, dizziness, insomnia, loss of appetite, burning eyes, shortness of breath, chest pain, mosquito bites resulting in fever, and the smell of cells smeared with feces rendering sleep impossible.

Recommend reforms in our plan were never voted on

Smart on Crime Coalition, 2011, “Recommendations for the Administration and Congress”, http://www.besmartoncrime.org/pdf/Complete.pdf

Legislation similar to the Prison Abuse Remedies Act (PARA), 81 originally introduced in the 110 the Congress, and the Prison Abuse Remedies Act of 2009 (PARA),82 introduced in the 111th Congress. The House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, held hearings on November 8, 2007 and April 22, 2008 regarding the problems with PLRA and the recommended reforms. However, neither bill received a committee vote.

Inherency: Proposed Regulations

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

The Department of Justice in early February opened a comment period for proposed regulations under the Prison Rape Elimination Act (PREA). Passed in 2003, the Act requires the Attorney General to promulgate national standards for the detection, prevention, reduction and punishment of prison rape. While its ultimate aim is to stem the rampant sexual abuse that occurs in prisons and jails across the country, up until now PREA has largely been an aspirational and fact-gathering statute. The proposed regulations are structured around recommended standards put forth by the Prison Rape Elimination Commission, established by PREA, in a comprehensive 2009 report on the “the penological, physical, mental, medical, social, and economic impacts of prison rape in the United States.” However, subsequent comments by interested parties citing concerns about prison security and inmate “gamesmanship” have resulted in some of the recommendations being largely neutered. Additionally, a statutory mandate that no regulation impose substantial additional costs on prison authorities may limit the types of programs the regulations can implement. However, the comment period will allow for criticism and revision of the proposed regulations and provides an open forum for prisoner-rights advocates to be heard. The proposed regulations would ban cross-gender strip searches, create minimum standards for investigations following a report, require correctional facilities to provide medical and mental health care, and institute a zero tolerance policy for sexual assault and harassment. The regulations also purport to make the prison grievance systems more accessible, however they don’t go as far as most advocates think necessary. It remains to be seen what effect, if any, the regulations will have.

PLRA doesn’t even work right

Margo Schlanger, (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) Giovanna Shay, (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN

If the PLRA were successfully “reduc[ing] the quantity and improv[ing] the quality of prisoner suits,” as its supporters intended, one would expect the dramatic decline in filings to be accompanied by a concomitant increase in plaintiffs’ success rates in the cases that remain. The evidence is quite the contrary. The shrunken inmate docket is less successful than before the PLRA’s enactment; more cases are dismissed, and fewer settle. An important explanation is that constitutionally meritorious cases are now faced with new and often insurmountable obstacles.

Assault statistics

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Insufficient research has been conducted and insufficient data reported on the extent of prison rape. However, experts have conservatively estimated that at least 13 percent of the inmates in the United States have been sexually assaulted in prison. Many inmates have suffered repeated assaults. Under this estimate, nearly 200,000 inmates now incarcerated have been or will be the victims of prison rape. The total number of inmates who have been sexually assaulted in the past 20 years likely exceeds 1,000,000.

Harms: Legit cases thrown out

Exhaustion requirement is abusive

Margo Schlanger, (Professor of Law, Washington University in St. Louis; Visiting Professor of Law, University of Michigan Law School) Giovanna Shay, (Assistant Professor of Law, Western New England College School of Law), December, 2009, “PRESERVING THE RULE OF LAW IN AMERICA’S JAILS AND PRISONS: THE CASE FOR AMENDING THE PRISON LITIGATION REFORM ACT”, Accessed via SSRN

For this reason, the National Prison Rape Elimination Commission, a bipartisan commission appointed under the Prison Rape Elimination Act of 2003,52 has warned that the PLRA exhaustion requirement can “frustrate Congress’s goal of eliminating sexual abuse in U.S. prisons, jails, and detention centers.”53 The Commission wrote to the House Judiciary Committee that “[b]ecause of the emotional trauma and fear of retaliation or repeated abuse that many incarcerated rape victims experience, as well as the lack of confidentiality in many administrative grievance procedures, many victims find it extremely difficult—if not impossible—to meet the short timetables of administrative procedures.”54

Physical injury requirement prevents prosecution of many constitutional violations

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Repeal the PLRA’s physical-injury requirement. The PLRA prohibits a prisoner from recovering damages for mental or emotional injuries suffered while in custody unless the prisoner also was injured physically. See 42 U.S. C. § 1997e(e). The effect of this provision is to leave a wide range of constitutional violations beyond redress, including some forms of torture.

Physical evidence requirement prevents prosecution of rape

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/

In some situations, the PLRA’s requirement that inmates suffer physical injury to recover monetary damages has even excluded lawsuits stemming from sexual assaults. For instance, in 2006 in Hancock v. Payne, U.S. Magistrate Judge John Roper Sr. in the Southern District of Mississippi dismissed a lawsuit by several male inmates who alleged they were sodomized. “The plaintiffs do not make any claim of physical injury beyond the bare allegation of sexual assault,” he wrote.

Couldn’t prosecute Abu Ghraib under U.S. law

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

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.

Harms: 2) Application to Juvenile Offenders

Three harms needing reform

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

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. 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.

Harms: 3) Accountability

Inmates usually just punished for complaining

Jennifer Wedekind (a journalist whose work has appeared in Mother Jones, In These Times, and the Multinational Monitor. She is a 2011 JD Candidate at Georgetown Law), March 2011, “Prison Rape, the PREA, and the PLRA”, Solidarity Watch, http://solitarywatch.com/2011/03/07/prison-rape-the-prea-and-the-plra/ [JR]

When a prisoner comes forward and reports a sexual assault, he or she is more likely to face retribution than redress. Complaining prisoners frequently face retaliatory harassment, discipline or further abuse. A full 25 percent of inmate victims are summarily sent to solitary confinement, according to the Department of Justice’s own numbers.

Undermines accountability

Wendy N. Davis, (J.D., ABA Editor), June 2010, “Unlocking the Lawsuit”, Published by the American Bar Association, http://www.abajournal.com/magazine/article/unlocking_the_lawsuit/

Shay, an associate professor at Western New England College School of Law, says that the court system is no longer in a position to intervene to stem many abuses. The PLRA “undermines one of the few accountability mechanisms that we have for prisons,” says Shay. “When there’s no oversight, it’s hard to keep corrections cultures healthy,” she adds.

Harms: 4) Other

Violates convention against torture

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

“The United States ratified the United Nations Convention Against Torture in 1994, in which “torture” is defined as any punishment that may inflict severe pain or suffering, whether mental or physical. However, under the PLRA, a prisoner must prove physical injury in order to obtain compensatory damages, meaning countless prisoners who experience unconscionable living conditions or sexual and emotional abuses do not have access to appropriate judicial remedies. The Committee Against Torture recently reviewed the United States’ compliance with the treaty and found the PLRA’s physical injury requirement to be an explicit violation. The Committee urges the repeal of the physical injury requirement.”

Rape is not frivolous, it is a serious and heinous crime

Deborah M. Golden (staff attorney at D.C. Prisoners’ Legal Services Project, J.D. Michigan Law School), June 2006, “The Prison Litigation Reform Act–A Proposal for Closing the Loophole for Rapists”, Published by the American Constitution Society, Accessed via SSRN

Rape is simply not equivalent to receiving chunky peanut butter or bad haircuts, examples of subjects of frivolous complaints cited by the PLRA’s proponents. Rape is so heinous and injurious that it falls into that category that “virtually everybody believes” 53 is too torturous to force upon any convicted criminal. Rape is much more than an “emotional injury.”54 “Prison rape, like all other forms of sexual assault, is torture.”55 Rape, therefore, must be a compensable injury within the meaning of [PLRA] 42 U.S.C. § 1997e(e).

Advocacy

Additional advocacy to investigate:

General legislative recommendations: http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

Amend the physical evidence requirement to include other forms of assault: http://www.acslaw.org/files/Golden-%20Prison%20Litigation%20Reform%20Act%20-%20June%202006%20-%20Advance%20Vol%201.pdf

Amend the requirement for exhaustion of administrative remedies

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Amend the requirement for exhaustion of administrative remedies to provide that prisoners who have filed a lawsuit within the time period set by the statute of limitations but have not exhausted their administrative remedies can pursue their claim through an administrative-remedy process while the lawsuit is stayed. The PLRA requires prisoners to exhaust available administrative remedies before filing a lawsuit that challenges the legality of the conditions of their confinement under 42 U.S. C. § 1983 or any other “[f]ederal law.” In Wood ford v. Ngo, 126 S. Ct. 2378 (2006), the Supreme Court held that this exhaustion requirement implicitly includes a procedural-default sanction. In other words, if a prisoner does not file a grievance within the timelines set by prison officials, the prisoner has failed to exhaust administrative remedies and is barred from bringing suit. In an iambics brief filed with the Supreme Court, the American Bar Association strongly disagreed with this interpretation of the PLRA’s exhaustion requirement One of the problems with the exhaustion requirement, as it is currently constructed, is that it effectively closes the courthouse door to many prisoners. See, e.g., Gauntt v. Miracle, 2002 WL 1465763 (N.D. Ohio) (complaint alleging injuries from a correctional officer’s excessive use of force dismissed because of the prisoner’s failure to meet a 5-day deadline in filing a grievance). The deadlines for filing a prison grievance typically are very short, usually no more than fifteen days and in some states as little as two to five days.

Repeal the PLRA provisions extending its requirements to juveniles

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

Repeal the PLRA provisions extending its requirements to juveniles confined in juvenile detention and correctional facilities. The PLRA’s proponents professed that its provisions were designed to curb the filing of frivolous lawsuits by prisoners. Juveniles incarcerated in juvenile detention and correctional facilities had not filed the frivolous lawsuits that those lobbying for the PLRA’s enactment referred to in largely unsubstantiated anecdotes.

American Bar Association recommendations to congress

Robert M.A. Johnson, (Anoka County attorney in Anoka, Minnesota, and president of the National District Attorneys Association, Chair of the Criminal Justice Section), February 2007, Published by the American Bar Association: Criminal justice Section, http://www.savecoalition.org/americanbar.html

RESOLVED, That the American Bar Association urges Congress to repeal or amend specified provisions of the Prison Litigation Reform Act (PLRA) as follows:
1. Repeal the requirement that prisoners (including committed and detained juveniles and pretrial detainees, as well as sentenced prisoners) suffer a physical injury in order to recover for mental or emotional injuries caused by their subjection to cruel and unusual punishment or other illegal conduct;
2. Amend the requirement for exhaustion of administrative remedies to require that a prisoner who has not exhausted administrative remedies at the time a lawsuit is filed be permitted to pursue the claim through an administrative- remedy process, with the lawsuit stayed for up to 90 days pending the administrative processing of the claim;
3. Repeal the restrictions on the equitable authority of federal courts in conditions-of-confinement cases;
4. Amend the PLRA to allow prisoners who prevail on civil rights claims to recover attorney’s fees on the same basis as the general public in civil rights cases;
5. Repeal the provisions extending the PLRA to juveniles confined in juvenile detention and correctional facilities; and
6. Repeal the filing fee provisions that apply only to prisoners.

Prison experts and former officials all calling for reform

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

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.

Solvency

The basic part of the PLRA should remain

Save Coalition (a group of organizations and individuals dedicated to protecting the U.S. prison, jail and youth detention population) as of July 12, 2011 “REFORM THE PRISON LITIGATION REFORM ACT: TOP 10 HARMFUL PLRA RESULTS” http://www.savecoalition.org/top10.html [JR]

The core of the PLRA is its preliminary screening requirement. Prisoner cases that are frivolous or malicious, that fail to state a claim on which relief can be granted, or that seek damages from a defendant who is immune from them, are to be dismissed out of hand, without service of process on the defendants and without requiring prison officials to respond.1 As a result of this pre-service screening, correctional administrators no longer see a large volume of prisoner cases, and courts only must deal with those cases once. This provision directly addresses the problem of frivolous prisoner litigation and should remain the law. Unfortunately, over the past twelve years, it has become apparent that a number of provisions of the Prison Litigation Reform Act (“PLRA”)2 cast shadows of constitutional immunity, contravening our core commitment to constitutional governance. The PLRA’s obstacles to meritorious lawsuits are undermining the rule of law in our prisons and jails, granting the government near-impunity to violate the rights of prisoners without fear of consequences.

Preliminary screenings fine, other provisions not

Human Rights Watch, (One of the world’s leading independent organizations dedicated to defending and protecting human rights), David Fathi primary author, (Director of the US Program of Human Rights Watch, J.D. Boalt Hall School of Law at the University of California, Berkeley), “No Equal Justice: The Prison Litigation Reform Act in the United States”, June 2009

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.

PLRA’s screening works and is sufficient, other provisions must be reformed

Elizabeth Alexander, ( ACLU National Prison Project, J.D. Yale Law School) John Boston, (New York Legal Aid Prisoners’ Rights Project), November 2008, “RETURN THE RULE OF LAW TO U.S. PRISONS AND JAILS BY FIXING THE PRISON LITIGATION REFORM ACT”, Published by the Safe On Crime Coalition http://2009transition.org/criminaljustice/index.php?option=com_content&view=article&id=28&Itemid=111

“Over a decade of experience has shown that the PLRA’s preliminary screening requirement is sufficient to fulfill the legislation’s purpose. By requiring courts to summarily dismiss prisoner cases that are frivolous, malicious, or fail to state a legal claim, this provision has greatly reduced the burden on courts posed by prisoner cases that are not meritorious. However, other provisions of the PLRA must be amended or repealed in order to restore the rule of law to prisons and jails so that people, including children, can have their meritorious constitutional claims heard in court.”

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